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Document Classification: Public
Terms and Conditions for Checkmk Software (Self-Hosted)
and Checkmk Cloud (SaaS)
Version 2.0 (2026-03-17)
A. General Terms and Conditions for Customers of Checkmk GmbH und Checkmk, Inc. (“GTC”) 2
1 Scope of Application 2
2 Contractual Partner 2
3 Contract Documents and Order of Precedence 3
4 Definitions 4
5 Checkmk Software (Self-Hosted) and Add-Ons 6
6 Checkmk Cloud (SaaS) and Add-Ons 7
7 Use 8
8 Use of AI 8
9 Suspension 11
10 Checkmk OEM Support 11
11 Modifications and Discontinuation of Service Components 12
12 Customer`s Duty to Cooperate 13
13 Term and Termination 14
14 Payment and Invoicing 15
15 Proprietary Rights 16
16 Confidentiality 16
17 Data Protection and Data Utilization by the Provider 17
18 Engagement of Sub-processors 19
19 Data Act 19
20 Remedies for Defects 19
21 Remedies for Defective Checkmk OEM Support Services 21
22 Limitation of Liability 21
23 Indemnification 22
24 Export Control 23
25 Trial Version, POC Version and Free Version 24
26 Force Majeure 26
27 Governing Law 26
28 Jurisdiction 27
29 Final Provisions 27
B. Special Terms and Conditions for Customers of Checkmk, Inc. (U.S. STC) 29
1. Suspension 29
2. Modifications and Discontinuation of Service Components 29
3. Term and Termination 30
4. Payment and Invoicing 30
5. Data Act 30
6. LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES 30
7. INDEMNITIES 32
8. LIMITATIONS OF LIABILITY 34
9. Force Majeure 34
10. Final Provisions 35
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A. General Terms and Conditions for Customers of
Checkmk GmbH und Checkmk, Inc. (“GTC”)
1 Scope of Application
1.1 These General Terms and Conditions for Customers of Checkmk GmbH and
Checkmk, Inc., including their appendices (“GTC”), as supplemented by the End User
License Agreement (“EULA”), as well as the Special Terms and Conditions for Customers of
Checkmk, Inc., including their appendices (“U.S. STC”) (where applicable), together with all
documents incorporated therein by reference or hyperlink, govern the framework conditions
(collectively the “Terms and Conditions”) for
1.1.1 the temporary provision of Checkmk Software (Self-Hosted) (as defined in Section
4.7 and Section 5 of the GTC);
1.1.2 the temporary provision of Checkmk Cloud (SaaS) (as defined in Section 4.2 and
Section 6 of the GTC), and
1.1.3 in each case including the provision of Checkmk OEM Support (as defined in
Section 4.6).
Sections 1.1.1 - 1.1.3 of the GTC shall hereinafter be referred to collectively as “Services”.
1.2 The Services are provided by the Contractual Partner referred to in Section 2 of the
GTC (“Provider”) to its Customers (“Customer”) on the basis of a Subscription Agreement.
The Subscription Agreement is concluded either by means of an order form signed by both
parties or by means of the designated digital ordering process (“Order”).
1.3 The Provider offers its Services exclusively to natural or legal persons under private
or public law or partnerships with legal capacity who are acting in the exercise of their trade,
business or profession. The Customer’s status must be proven at the time of entry into the
contract, e.g. by providing their VAT identification number or other suitable proof. All
information provided by the Customer in this context must be complete and truthful.
1.4 For the use of Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) without
a Subscription Agreement in the context of a Trial-Version (“Trial-Version”) or proof of
concept (“POC-Version”), Section 2 and the deviations set out therein apply in addition to
the provisions of these Terms and Conditions. The same applies to the free use of the
Checkmk Software (Self-Hosted) without a Subscription Agreement after the expiry of the
trial period of a Trial-Version or POC-Version (“Free-Version”). Free use of Checkmk Cloud
(SaaS) is not possible after the trial period of a Trial-Version or POC-Version has expired.
1.5 In the event Checkmk Software (Self-Hosted) is provided or Checkmk Cloud (SaaS)
is made available by an authorized Partner, the contractual terms agreed with said partner
shall apply exclusively. For the purposes of this Section, "Partner" means companies
authorized to resell Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS), respectively.
The use of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) is additionally
governed by the EULA (as defined in Section 3.1.3 of the GTCC).
2 Contractual Partner
2.1 For the provision of Services, the Customer’s Contractual Partner is either Checkmk
GmbH, Kellerstraße 27, 81667 Munich, Germany (“Checkmk GmbH”) or Checkmk, Inc., 675
Ponce de Leon Ave NE Suite 8500, Atlanta, GA 30308, USA (“Checkmk, Inc.”). The specific
Contractual Partner of the Customer results from the indication in the relevant order form,
subject to Section 2.2 of the GTC.
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2.2 Notwithstanding Section 2.1 of the GTC, the Customer’s Contractual Partner for the
provision of Trial-Versions is determined by the region in which the Customer has its
registered office:
2.2.1 If the registered office is in Europe, the Middle East, Africa, or the APAC region, the
Contractual Partner is Checkmk GmbH.
2.2.2 If the registered office is outside the regions listed in Section 2.2.1 of the GTC, such
as in North or South America, the Contractual Partner is Checkmk Inc.
3 Contract Documents and Order of Precedence
3.1 “Subscription Agreement” means the contract between the Provider and the
Customer regarding the temporary licensing of Checkmk Software (Self-Hosted) or the
provision of Checkmk Cloud (SaaS), as well as support services, for a defined term. It
consists of the following documents, each of which forms an integral part of every Order:
3.1.1 the Order, as defined in Section 1.2;
3.1.2 the Data Processing Agreement for Customers with Checkmk GmbH (DPA) or the
Data Processing Agreement for Customers with Checkmk, Inc. (U.S. DPA), if personal data
is processed on behalf of the Customer. DPA and U.S. DPA have the meanings set forth in
Section 17.3 of the GTC. The latest version of the DPA is available and accessible at
https://checkmk.com/legal/dpa and the latest version of the U.S. DPA is available and
accessible at https://checkmk.com/legal/dpa-us;
3.1.3 the General Terms and Conditions for Customers of the Checkmk GmbH and
Checkmk, Inc. (GTC) as supplemented by the End User License Agreement (EULA); The
GTC are set out in Part A of these Terms and Conditions for Checkmk Software (Self-Hosted)
and Checkmk Cloud (SaaS). The most recent version of the EULA is available and can be
accessed at https://checkmk.com/eula;
3.1.4 the Service Description Checkmk OEM Support and SLAs. The most recent version
of the Service Description Checkmk OEM Support and SLAs is available and can be
accessed at https://checkmk.com/legal/support;
3.1.5 the Special Terms and Conditions for Customers of Checkmk GmbH on Data
Exchange under the Data Act (the STC Data Act), where applicable. STC Data Act has the
meaning set forth in Section 19 of the GTC. The most recent version of the STC Data Act is
available and can be accessed at https://checkmk.com/legal/data-act;
3.1.6 the Special Terms and Conditions for Customers of Checkmk, Inc. (U.S. STC),
where applicable; U.S. STC is governed by Part B of these Terms and Conditions for
Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) and supplements or modifies
the GTC to the extent regulated therein;
3.1.7 all other documents referenced in the aforementioned documents or the Order, or
incorporated by reference or hyperlink.
3.2 In the event of any contradictions between the individual contract documents of the
Subscription Agreement, the following order of priority applies, unless expressly agreed
otherwise:
3.2.1 Order;
3.2.2 DPA (where applicable) or U.S. DPA (where applicable);
3.2.3 STC Data Act (where applicable);
3.2.4 Service Description Checkmk OEM Support and SLAs;
3.2.5 U.S. STC (soweit anwendbar);
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3.2.6 GTC as supplemented by the EULA. In the event of any conflict or inconsistency
between the GTC and the EULA, the provisions of the EULA shall prevail insofar as
the use of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) is
concerned, whereas in all other cases, the provisions of the GTC shall take
precedence;
3.2.7 all other documents referenced or incorporated by reference or hyperlink.
4 Definitions
The terms defined in this Section 4 of the GTC shall apply to these Terms and Conditions.
They include both the singular and the plural, unless the context requires otherwise.
4.1 “AI” means AI systems and/or AI-based models. An AI system is a system falling
under the definition of “AI system” within the meaning of the AI Act and operates to a certain
degree autonomously (e.g., makes decisions, learns, or evolves on its own) and generates
AI-Output, including generative AI systems and general-purpose AI systems within the
meaning of the AI Act. A generative AI system is an AI system designed to generate text,
images, audio, video, or other similar content. A universal AI system is an AI system that can
be used and adapted to a wide range of applications for which the AI system was not
specifically developed. An AI-based model, as defined in the AI Act, refers to an AI-Model
that has been trained on the basis of extensive data, designed for various AI-Outputs, and
adaptable to a wide range of different tasks (e.g., large language models). Other machine
learning applications do not fall under the definition of AI systems unless they are covered by
the provisions of the AI Act.
4.2 “AI Act” means Regulation (EU) 2024/1689 of the European Parliament and of the
Council of 13 June 2024 on artificial intelligence (AI Act), published in the Official Journal of
the European Union on 12 July 2024.
4.3 “AI-Output” means the results generated by AI, e.g., texts, images, videos, codes,
tests, predictions, recommendations, or decisions.
4.4 “AI Regulations” means the AI Act and other legal acts concerning artificial
intelligence, regardless of their jurisdiction.
4.5 “Affiliate” means any entity controlling, controlled by or under common control with
a party. Control within the meaning of this definition means ownership of more than fifty per
cent (50%) of the voting shares in an entity or the power to direct the management and
strategy of an entity.
4.6 “Checkmk Cloud (SaaS)” means the Provider’s software-as-a-service offering,
including Checkmk OEM Support Services with the functionalities and features defined in the
respective Checkmk Cloud Edition (SaaS), which the Customer has licensed in accordance
with the Subscription Agreement, as described in more detail in the User Guide Cloud (SaaS)
and updated from time to time.
4.7 “Checkmk Cloud Edition (SaaS)” comprises the current and future editions of
Checkmk Cloud (SaaS), which may differ in terms of product functionality or functional
restrictions, performance and performance limits, and/or different Checkmk Cloud (SaaS)
offerings. These editions are listed, where available, in the Provider’s most recent price and
product overview (available and accessible at https://checkmk.com/pricing) and in the User
Guide Cloud (SaaS).
4.8 “Checkmk Data Backend” means the Provider’s central data repository and storage
architecture (currently identified within the Checkmk Software (Self-Hosted) and the
Checkmk Cloud (SaaS) as the “Metric Backend”) used to house and process telemetry and
observability data, regardless of the underlying database technology utilized.
4.9 “Checkmk Edition” means the Checkmk Software Edition (Self-Hosted) and/or
Checkmk Cloud Edition (SaaS).
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4.10 “Checkmk Instance” means a running installation of the Checkmk Software
(Self-Hosted) on a physical or virtual system (also referred to as a ‘Site’).
4.11 “Checkmk OEM Support” means the support services provided by the Provider
under a Subscription Agreement for Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) in accordance with the “Service Description Checkmk OEM Support and SLAs”.
4.12 “Checkmk Software (Self-Hosted)” means the Provider’s self-hosting offering,
including Checkmk OEM Support Services, with the functionalities and features defined in
the respective Checkmk Software Edition (Self-Hosted), which the Customer has licensed in
accordance with the Subscription Agreement, as described in more detail in the User Guide
Software (Self-Hosted) and updated from time to time.
4.13 “Checkmk Software Edition (Self-Hosted)” includes the current Checkmk
Community, Checkmk Pro and Checkmk Ultimate editions as well as future editions of
Checkmk Software (Self-Hosted), which may differ in terms of product functionality or
functional restrictions, performance and performance limits and/or different Checkmk
Software (Self-Hosted) offerings. These editions are listed, where available, in the Provider’s
most recent price and product overview (available and accessible at
https://checkmk.com/pricing) and in the User Guide Software (Self-Hosted).
4.14 “Data Act” means Regulation (EU) 2023/2854 of the European Parliament and of the
Council of 13 December 2023 on harmonised rules for fair access to and use of data, and
amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (the “Data Act”).
4.15 “End User” means any person authorized by the Customer to access and use
Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS), directly or indirectly, a) for the
Customer's internal business purposes or b) to the extent expressly agreed in the
Subscription Agreement, also within the scope of a Group License for the purposes of
Affiliated Companies or within the scope of Managed Services Use for the purposes of third
parties. This includes employees of the Customer, contractors, agents, or other third parties
acting on behalf of the Customer in accordance with the Subscription Agreement and the
EULA.
4.16 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data, and repealing Directive 95/46/EC
(General Data Protection Regulation).
4.17 “Licensed Services” means the number of Services defined in the Subscription
Agreement that may be monitored using Checkmk Software (Self-Hosted) and Checkmk
Cloud (SaaS). A “Service” consists of at least one monitored data point, e.g., the CPU load of
a specific device. A monitored device may therefore generate many monitored Services in
the Checkmk Software (Self-Hosted) or in Checkmk Cloud (SaaS).
4.18 “Licensed Synthetic Tests” means the number of Synthetic Tests and Keywords
defined in the Subscription Agreement for Checkmk Software (Self-Hosted) and Checkmk
Cloud (SaaS), where available, for which the Checkmk Synthetic Monitoring add-on may be
used. A “Synthetic Test” is an automated procedure for monitoring the availability,
performance, and functionality of an application from an end user perspective, consisting of
a sequence of “Keywords,” where each keyword can define a specific functional interaction
– such as a click or text entry.
4.19 “Licensed Custom Metrics” means the number of Custom Metrics defined in the
Subscription Agreement for Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS),
where available, for which the Telemetry add-on may be used. “Custom Metrics” means any
data series stored in the Checkmk Data Backend.
4.20 “Service Generated Data” means telemetry data, metadata, and analytical data
generated by the Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) and its
respective environments. This includes data regarding the utilization, performance, and
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configuration of the software (e.g., utilized check plug-ins), including AI-Output (if
applicable).
4.21 “SLAs” for Checkmk Cloud (SaaS) means the service levels specified in the Service
Description Checkmk OEM Support and SLAs. The most recent version of the Service
Description Checkmk OEM Support and SLAs is available and can be accessed at
https://checkmk.com/legal/support.
4.22 “Support Contacts” are the persons designated by the Customer who are
authorized to submit support requests for the Customer.
4.23 “User Guide” means the User Guide Software (Self-Hosted) and the User Guide
Cloud (SaaS). User Guide refers to the product information published by the Provider, which
describes the features of Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) and
includes configuration, integration, and administration guidelines, which are updated from
time to time. For each version of Checkmk Software (Self-Hosted) and Checkmk Cloud
(SaaS), only the documentation relating to that version is valid.
4.24 “User Guide Cloud (SaaS)” means the most recent version of the documentation for
Checkmk Cloud (SaaS) and is available and accessible at https://docs.checkmk.com/saas.
4.25 User Guide Software (Self-Hosted)” means the most recent version of the
documentation for Checkmk Software (Self-Hosted) and is available and accessible at
https://docs.checkmk.com.
5 Checkmk Software (Self-Hosted) and Add-Ons
5.1 Checkmk Software (Self-Hosted) is described in more detail in the User Guide
Software (Self-Hosted). Various Checkmk Software Editions (Self-Hosted) are offered, which
differ in terms of their range of functions and the scope of the license.
5.2 Provision. Checkmk Software (Self-Hosted) is provided, exclusively electronically,
for download and must be installed by the Customer itself.
5.3 Access to new versions. The Customer will receive access to new versions of the
Checkmk Software (Self-Hosted), which may include functional enhancements or bug and
security fixes. From the initial release date of a full version (e.g., version 2.5.0), bug and
security fixes will be provided for a period of at least twenty-four (24) months. The product
lifecycles are listed in the User Guide Software (Self-Hosted).
5.4 Checkmk Software (Self-Hosted) Add-Ons. The Provider may offer specific
fee-based add-ons for Checkmk Software (Self-Hosted), whereby not all Add-ons are
available for all Checkmk Editions Software (Self-Hosted) at the Provider’s sole discretion. If
listed in the Subscription Agreement, the following provisions apply regarding to the
respective Add-on(s):
5.4.1 Synthetic Monitoring. Synthetic Monitoring offers the possibility of monitoring
applications from an end user perspective. The add-on is licensed in accordance with the
EULA for the number of Licensed Synthetic Tests stated in the Subscription Agreement.
5.4.2 virt1. The virt1 is a separate software that enables the GUI-guided installation of a
Checkmk Software Edition (Self-Hosted) in a virtual environment. The add-on is licensed for
the number of Licensed Services defined in the Subscription Agreement.
5.4.3 ntop integration. The ntop integration enables the use of Checkmk Software
(Self-Hosted) in conjunction with the commercial version of the ntopng software, which must
be licensed by Customers separately from third-party providers.
5.4.4 Telemetry. Telemetry enables Customers to integrate Custom Metrics via
standardized protocols, including but not limited to OpenTelemetry and Prometheus. The
add-on is licensed in accordance with the EULA for the number of Licensed Custom Metrics
series stated in the Subscription Agreement.
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5.4.5 Calculation. The calculation of the number of monitored Services, Synthetic Tests
(Synthetic Monitoring) and Custom Metrics (Telemetry) for Checkmk Software (Self-Hosted)
is governed in the EULA and the User Guide Software (Self-Hosted).
5.5 The Checkmk Software (Self-Hosted) contains over 2,000 check plug-ins that can
be used to monitor data points from different devices and applications. The manufacturers of
these devices and applications regularly modify their software and interfaces. Such changes
to the monitored systems may affect the functionality of the monitoring. The Checkmk
Software (Self-Hosted) will be adapted to such changes in accordance with the Checkmk
product roadmap, which the Provider determines at its sole discretion. The Provider is not
obliged to implement specific adaptions at a specific time or at all.
6 Checkmk Cloud (SaaS) and Add-Ons
6.1 Checkmk Cloud (SaaS) is described in more detail in the User Guide Cloud (SaaS)
Various Checkmk Cloud Editions (SaaS) may be offered, which may differ in terms of product
functionality or functional restrictions, performance and performance limits, and/or different
service offerings.
6.2 Provision. The Provider will make Checkmk Cloud (SaaS) available in a data center
for access and use by the Customer. Checkmk Cloud (SaaS) is considered to be ready for
access and use as soon as the Provider has provided the Customer with functional access
data. The relevant service provision point for Checkmk Cloud (SaaS) is the router exit of the
data center used by the Provider. The Provider is not liable for failures or unavailability of
hardware and software components, telecommunications networks or other networks
beyond this service provision point. The Customer’s connection to telecommunications
networks, the maintenance of the network connection, and the procurement and provision of
the hardware and software required by the Customer are not part of the Subscription
Agreement and are the sole responsibility of the Customer. Further technical details are set
out in the User Guide Cloud (SaaS).
6.3 Access to new versions. The Customer may gain access to new versions of
Checkmk Cloud (SaaS) that may contain functional enhancements or bug and security fixes.
The Provider will automatically integrate such new versions into Checkmk Cloud (SaaS) at its
sole discretion and will further notify the Customer of such new versions of Checkmk Cloud
(SaaS) at its sole discretion.
6.4 Checkmk Cloud (SaaS) Add-Ons. The Provider may offer specific fee-based
Add-Ons for Checkmk Cloud (SaaS), whereby not all Add-Ons are available for all Checkmk
Editions Cloud (SaaS) at the Provider’s sole discretion. If listed in the Subscription
Agreement, the following provisions apply regarding to the respective Add-on(s) listed in the
Subscription Agreement:
6.4.1 Telemetry. Telemetry enables Customers to integrate Custom Metrics via
standardized protocols, including but not limited to OpenTelemetry and Prometheus. The
Telemetry Add-On is licensed in accordance with the EULA for the number of Custom
Metrics series stated in the Subscription Agreement.
a) Limits and Enforcement. To preserve the availability of Checkmk Cloud (SaaS) for
the entire customer base, Customer shall a) not exceed the number of licensed
Custom Metrics series stated in the Subscription Agreement, b) adhere to a data
transmission frequency for Custom Metrics to the Checkmk Data Backend of no
more than once every 15 seconds, and c) not excessively use Queries, which means
not exceeding five (5) times the average Query usage of customers with a similar
Subscription size of the Customer. “Query”/”Queries” are defined as one or several
Custom Metrics that a Customer wants to transfer in one request from the Checkmk
Data Backend into its Checkmk Cloud (SaaS) sites for further processing, e.g., for
dashboards or API calls.
b) If the Customer exceeds the number of licensed Custom Metrics series stated in the
Subscription Agreement and/or violates the data transmission frequency of no more
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than once every 15 seconds and/or excessively uses Queries, the Provider reserves
the right, at its sole discretion, to immediately suspend all incoming data to the
Checkmk Data Backend and to block all Queries.
c) Data Storage. The Provider will store the Custom Metrics for the period stated in the
current version of the User Guide Cloud (SaaS).
6.4.2 Calculation. The calculation of the number of monitored Services, Synthetic Tests
(Synthetic Monitoring) and Custom Metrics (Telemetry) for Checkmk Cloud (SaaS) is
governed in the EULA and, if available, in the Checkmk User Guide Cloud (SaaS).
6.5 Technical Limitations. Subject to the Subscription Agreement and the Checkmk
Cloud Edition (SaaS) agreed therein, as well as general technical limitations, the use of
Checkmk Cloud (SaaS) is limited to a defined number of End Users and a defined number of
Licensed Services and Licensed Custom Metrics that the Customer may monitor with
Checkmk Cloud (SaaS). Depending on the further technical development of Checkmk Cloud
(SaaS) and, its availability, the Customer may use the self-service functionality within the
‘Checkmk Customer Portal’ (available at https://portal.checkmk.com) or contact the Provider
to request an upgrade to another Checkmk Cloud Edition (SaaS) in order to increase the
number of End Users and/or Licensed Services.
7 Use
7.1 Subject to the Customer’s compliance with its obligations under the Subscription
Agreement, in particular its payment obligations under Section 14 of the GTC, the Provider
grants the Customer a limited-term right to use Checkmk Software (Self-Hosted) or Checkmk
Cloud (SaaS), in accordance with the EULA and, and to utilize the support services specified
in the Subscription Agreement. Checkmk Software (Self-Hosted) consists of a Checkmk
Software Edition (Self-Hosted) and, if applicable, add-ons. Checkmk Cloud (SaaS) consists
of a Checkmk Cloud Edition (SaaS) and, if applicable, add-ons.
7.2 Group License and Managed Services Use. Subject to the availability and provided
that such right is expressly granted in the applicable Subscription Agreement, the Provider
grants the Customer the right to use Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) a) for the benefit of its Affiliates (“Group License”), and/or b) for the business
purposes of third parties (“Managed Services Use”).
7.3 No Resale. Unless expressly agreed as part of a Managed Services Use, the
Customer is prohibited from using Checkmk Software (Self-Hosted) and Checkmk Cloud
(SaaS) to provide services to third parties (e.g., as a Managed Service Provider) or from
otherwise commercially exploiting the Services. In the event of a breach, the Provider
reserves the right to prohibit such use.
7.4 Third-Party Technology. Checkmk Software (Self-Hosted) and Checkmk Cloud
(SaaS) may contain third-party technology (including third-party open-source software)
made available to the Customer as part of Checkmk Software (Self-Hosted) and Checkmk
Cloud (SaaS) (“Separately Licensed Third-Party Technology”), which is subject to separate
license terms (“Separate Terms”). The Customer’s rights to use any Separately Licensed
Third-Party Technology under the Separate Terms are not restricted by the Subscription
Agreement. The Provider will ensure that all Separately Licensed Third-Party Technologies
are used in compliance with the respective Separate Terms. The Customer is obliged to
comply with such Separate Terms. Upon request, the Provider will make all relevant Separate
Terms available to the Customer.
8 Use of AI
The Customer acknowledges and agrees that the Provider may provide functions that are
based on or enable the use of AI. Where such functions are provided, their scope and
characteristics shall be determined by the then-current service description in the User Guide
Software (Self-Hosted) or User Guide Cloud (SaaS), respectively. The Provider is entitled to
restrict the use of these functions through technical limitations (in particular rate limits or
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token quotas), which may vary depending on the Checkmk Software Edition (Self-Hosted) or
Checkmk Cloud Edition (SaaS).
8.1 Provision of Interfaces within Checkmk Software (Self-Hosted).
a) The Provider provides Application Programming Interfaces (“APIs”) or connectors within
the Checkmk Software (Self-Hosted), which are described in more detail in the User Guide
Software (Self-Hosted), where available (“Interfaces”). These enable the Customer to
integrate their own AI-Models or third-party services on their own responsibility. Since the
Provider does not integrate any AI-based functions within the Checkmk Software
(Self-Hosted) itself, the selection, technical integration, and operation of such AI-Systems fall
exclusively within the Customer's area of responsibility and risk. Interoperability of the APIs
or connectors with specific AI-Models or services is not owed. Section 11 of the GTC shall
apply supplementally to the introduction, replacement, or modification of the Interfaces.
b) This Section 8.1 b) of the GTC does not apply for Customers of Checkmk, Inc..
For such Customers, Section 7 of the U.S. STC “INDEMNITIES” shall apply
exclusively. The Customer shall indemnify and hold the Provider harmless from and against
any third-party claims arising out of or in connection with the integration of such AI-Models
or services, unless the Customer is not responsible for the breach.
8.2 Provision of AI-Systems within Checkmk Cloud (SaaS). The Provider may provide
AI-Systems within Checkmk Cloud (SaaS) as defined in Art. 3 No. 1 of the AI Act (e.g.,
chatbots, assistants, or automated analysis functions) based on third-party AI-Models (“AI-
Systems”). This includes a) interactive AI-Systems (e.g., chatbots, assistants) for generating
AI-Output through Customer “Prompts,” as well as b) AI-powered functions that
automatically access monitoring data, logs, or metadata of the Checkmk Cloud (SaaS)
customer environment without manual input. All data transmitted by the Customer (e.g.,
Prompts, monitoring data, logs) used to generate AI-Output shall collectively be referred to
as “Input.”
To the extent necessary for the provision of the AI-Systems, the Provider is entitled or – in
the case of commissioned data processing – instructed by the Customer to transmit Input to
the respective third-party provider of the underlying AI-Model, solely for the purpose of
providing the AI-Output and the corresponding function under this Agreement. Data
protection requirements (in particular roles, commissioned processing, sub-processors,
third-country transfers) are primarily governed by the respectively agreed Data Processing
Agreement within the meaning of Section 17.3 of the GTC.
A detailed description of the currently integrated AI in Checkmk Cloud (SaaS) can be found
in the User Guide Cloud (SaaS). AI-Output generated as part of Checkmk Cloud (SaaS) shall
be marked as such. Section 11 of the GTC shall apply supplementally to the introduction,
replacement, or modification of AI-Systems.
8.3 Special Terms for AI-Systems within Checkmk Cloud (SaaS)
8.3.1 To the extent and as soon as the AI Act applies to the provision of the AI-Systems,
the Provider shall act as the provider of the AI-System integrated into Checkmk Cloud (SaaS)
for the purposes of the AI Act. All AI-Models underlying the AI-System are obtained by the
Provider from third parties and are integrated via APIs exclusively for the purpose of
providing the services in Checkmk Cloud (SaaS). The AI-Systems are not intended for the
autonomous control of critical infrastructures or for high-risk applications within the meaning
of the AI Act; such use is prohibited.
8.3.2 Customer Responsibility for Use
The Customer is aware that AI-Output may be prone to error. The Customer bears sole
responsibility for the decision of whether and how to use AI-Output, particularly regarding its
context of use, validation, as well as any actions and decisions derived therefrom. The
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Provider's responsibility for the contractually required provision and operation of Checkmk
Cloud (SaaS) remains unaffected by this.
8.3.3 Disclaimer of Warranty regarding AI-Output
This Section 8.3.5 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 6 of the U.S. STC “LIMITED WARRANTIES; DISCLAIMER
OF WARRANTIES” shall apply exclusively.
As AI-Output is generated by complex algorithmic systems of third-party providers, the
Provider assumes no warranty for the accuracy, completeness, reliability, or timeliness of the
generated AI-Output.
8.3.4 Notes/ Human-in-the-loop/ Cooperation
To the extent that Checkmk Cloud (SaaS) contains AI-Systems and the Customer uses these
AI-Systems as part of Checkmk Cloud (SaaS) to generate AI-Output or uses these AI-
Systems in any other manner, the Customer,
a) acknowledges that AI-Output is based on technologies that may produce incorrect
or inaccurate results;
b) shall ensure that any AI-Output generated via the AI-System within Checkmk Cloud
(SaaS) is not processed automatically or used for operational decisions or other
relevant purposes, but is instead carefully reviewed and verified by a natural person
prior to use (in particular by correcting logic or syntax errors in the AI-Output);
c) shall, upon the Provider's specific and reasoned request, provide reasonable
assistance in meeting quality or regulatory requirements for the AI-Systems
(including, but not limited to, providing relevant information and feedback on the
capabilities and limitations of the AI-Systems), particularly to avoid erroneous,
biased, or discriminatory AI Output; and
d) shall ensure that AI-Systems as part of Checkmk Cloud (SaaS) are not used to
generate discriminatory, biased, or unfair AI-Output, nor to infringe, misappropriate,
or otherwise violate the intellectual property rights of third parties, and shall provide
the Provider with corresponding documentation upon request and to a reasonable
extent, insofar as such documentation exists and is reasonable to provide.
8.3.5 Rights to AI-Output
The Provider does not assume or claim ownership of the AI-Output, particularly with regard
to intellectual property rights. To the extent that the Provider is entitled to rights in the
generated AI-Output under applicable law, the Provider grants or transfers such rights to the
Customer to the extent necessary for the contractually intended use of the AI-Output,
particularly with regard to intellectual property rights. Third-party rights as well as
pre-existing rights of the Provider shall remain unaffected.
8.3.6 AI-Model Training
The Provider ensures that Input is not used to train the third-party provider`s AI-Models.
8.3.7 Discretion in AI-Model Selection
The selection, deployment, and replacement of the underlying AI-Model used for the AI-
System shall be at the sole and equitable discretion of the Provider (§ 315 BGB). The
Customer has no claim to the use of a specific AI-Model, a particular model version, or a
specific third-party manufacturer, unless this has been contractually agreed. The Provider
may update or change the AI-Model at any time.
8.4 Use of AI in the Provision of Checkmk OEM Support
The Provider is entitled to use AI-Systems for the provision, analysis, and optimization of
Checkmk OEM Support services for Checkmk Cloud (SaaS) and Checkmk Software
(Self-Hosted) (“Support Purposes”). The Provider shall ensure that customer data
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transmitted to AI-Systems during the provision of support services is not used to train the
general AI-Models of third-party providers. To this end, the Customer grants the Provider the
necessary, non-exclusive rights of use to the corresponding customer data, limited to the
Support Purposes.
9 Suspension
This Section 9 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 1 of the U.S. STC “Suspension” shall apply exclusively.
9.1 The Provider has the right to investigate and enforce violations of the Subscription
Agreement by the Customer as described below..
9.2 The Provider is authorized to investigate any suspected violation of the obligations
and provisions set forth in the Subscription Agreement and these Terms and Conditions.
9.3 The Provider is authorized to suspend all Services set out in the respective
Subscription Agreement and any related services and resources, such as the Support
Services, by the Customer and/or an Affiliate of the Customer – temporarily or permanently –
with immediate effect if there are concrete indications of a) a violation of the Subscription
Agreement or the EULA (in particular the Acceptable Use Policy); or b) a violation of
applicable law; or c) there is a material default in payment by the Customer and/or one of its
Affiliates, after the Provider has unsuccessfully set a reasonable grace period for payment
for the Customer, or d) if the Provider has any other legitimate interests in suspending access
to and use of Checkmk Cloud (SaaS).
9.4 When deciding to suspend the Customer’s access to and the use of Services set out
in the respective Subscription Agreement, the Provider will take the legitimate interests of the
Customer into account to an appropriate extent and will give the Customer a reasonable prior
warning in text form that the respective Service set out in the respective Subscription
Agreement will be suspended. In individual cases, the Provider may also suspend Service set
out in the respective Subscription Agreement without prior warning in order to protect the
legitimate interests pursued by the Provider with the suspension, unless prior warning is
required by law or for other legal reasons.
9.5 The suspension of Services set out in the respective Subscription Agreement does
not constitute a termination of the Subscription Agreement. The Provider may only maintain
the suspension without termination for a reasonable period of time, up to a maximum of three
(3) months.
9.6 The Provider's claim to payment of the remuneration for Services set out in the
respective Subscription Agreement will remain unaffected during the suspension. The
Customer will be entitled to reinstatement of access once it has proven that it has ceased the
respective use in breach of the Subscription Agreement and prevented any future use in
breach of the Subscription Agreement.
9.7 The Customer agrees to cooperate with the Provider in remedying any breach of the
Subscription Agreement that led to a suspension of Checkmk Cloud (SaaS), regardless of
who is at fault. In determining whether such a breach has occurred, the Provider may take
into account the Customer's ability and willingness to comply with the obligations and
provisions set out the Subscription Agreement or the EULA (in particular the Acceptable Use
Policy), including the policies and other procedures the Customer has in place to prevent or
detect and stop prohibited activities.
10 Checkmk OEM Support
The Provider will provide the Customer with Checkmk OEM Support services for Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS) in accordance with the Service
Description Checkmk OEM Support und SLAs.
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11 Modifications and Discontinuation of Service Components
This Section 11 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 2 of the U.S. STC “Modifications and Discontinuation of
Service Components” shall apply exclusively.
11.1 Subject to this Section 11 of the GTC, the Provider may modify the Services set out
under this Terms and Conditions, including by providing new versions, updates, or upgrades,
in order to adapt them to current technical developments or to align them with changes in
legislation or case law, with changes in subcontractors’ services, or with economic
conditions arising after conclusion of the Subscription Agreement. Such modifications may
also include changes to technical characteristics and functionalities, provided they remain
within the scope defined in Section 11 of the GTC.
11.2 If, from the Customer’s perspective, a modification of Checkmk Software
(Self-Hosted) and Checkmk Cloud (SaaS) does not merely constitute an improvement, but
reduces the scope of Services specified in the Subscription Agreement or changes it in a
manner that is unreasonable for the Customer, the Provider will announce the respective
modification of Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) within a
reasonable period of time through appropriate electronic channels in a manner recognizable
to the Customer (e.g., notification by email, publication in the documentation, on the
Provider’s website, or within Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS)).
Such announcement will be made within a reasonable period, but for Checkmk Cloud (SaaS)
no later than six (6) weeks in advance and for Checkmk Software (Self-Hosted) no later than
six (6) weeks prior to making the modification available as part of a new patch release or a
new full release. This does not apply to short‑notice adjustments or changes to Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS) to the extent necessary to remedy
security issues or to implement regulatory or statutory changes.
The following changes do not constitute a reduction of the service scope specified in the
Subscription Agreement or an unreasonable change within the meaning of this provision: a)
the release of new features or functionalities; b) routine updates, patches, or bug fixes that
do not have any material adverse effect on the Customer’s access to or use of Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS); c) changes to the user interface that do
not materially reduce functionality; and d) the introduction, modification, replacement, or
update of AI-based functionalities and the underlying AI-Models. The Provider is entitled, at
its sole discretion, to integrate various AI-based functionalities into Checkmk Software
(Self-Hosted) and Checkmk Cloud (SaaS) or to replace existing AI-Models with AI-Models of
other third-party providers in order to improve the Service or adapt it to technological
progress. The Customer acknowledges that the selection and replacement of the AI-Model
used in each case, as well as the AI-Model provider, are at the Provider’s discretion and that
the Customer has no entitlement to the use of any specific AI-Model or provider.
11.3 The provisions of the Subscription Agreement apply accordingly to the provision of
new features, functionalities, updates or upgrades, as well as patches to remedy defects.
11.4 The Provider may discontinue functionalities of Checkmk Software (Self-Hosted)
and Checkmk Cloud (SaaS) at any time at its sole discretion. The Provider will announce
such discontinuation or deactivation of a functionality of Checkmk Software (Self-Hosted)
and Checkmk Cloud (SaaS) at least three (3) months prior to deactivation, unless (i) an
earlier deactivation is required due to statutory provisions or obligations arising from an
agreement with a third party; or (ii) the continued provision of the relevant functionality
poses a security risk for the Provider, the Customer, or other customers, or represents a
significant economic or technical burden for the Provider.
11.5 he Provider may implement restrictive changes to Checkmk Software (Self-Hosted)
and Checkmk Cloud (SaaS) if (i) the Provider determines that a functionality, feature, or
component is subject to unusually low usage by its customers, including the Customer; (ii)
such unusually low usage is disproportionate to the costs and efforts incurred by providing
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the respective functionality, feature, or component to the Customer; and (iii) such
functionality, feature, or component does not constitute a material part of the product for
fulfilling the fundamental contractual obligations. If these conditions are met, the Provider
may amend the respective Subscription Agreement and the User Guide accordingly. Such
changes may relate to any functionalities or features and/or the limitations of Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS).
11.6 The Provider will in all cases take the Customer’s interests into account when
discontinuing or modifying any feature or functionality of Checkmk Software (Self-Hosted) or
Checkmk Cloud (SaaS).
12 Customer`s Duty to Cooperate
12.1 For contractual communication and for the provision of login data or licensing
credentials, the Customer will designate a so‑called ‘Super User‘. During the Subscription
Period, the Customer will keep the contact details of the Super User up to date and will
inform the Provider without undue delay of any changes. The Customer will designate
support contacts up to the maximum number resulting from the scope of support services as
set out in the Service Description Checkmk OEM Support and SLAs.
12.2 Access credentials or license keys that enable access to Checkmk Software
(Self-Hosted) and Checkmk Cloud (SaaS) must not under any circumstances be disclosed to
third parties. This does not apply to disclosure to Affiliates under a contractually granted
Group License, to service providers engaged by the Customer for their internal business
purposes, or to third parties under a contractually granted Managed-Services-Use. The
Customer bears sole responsibility for the use and disclosure of access credentials.
The Customer must implement and maintain processes and procedures to prevent
unauthorized access to and unauthorized use of Checkmk Software (Self-Hosted) and
Checkmk Cloud (SaaS). The Customer must notify the Provider without undue delay after
becoming aware of any such unauthorized access and/or unauthorized use, as well as any
compromise of license keys, and must remedy the root cause and any possible effects on
Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) to the extent possible (e.g., by
offboarding/deactivating the respective End User, changing the relevant access credentials,
etc.).
12.3 Appropriate assistance by the Customer is an essential prerequisite for a successful
processing of support requests. In particular, the Customer must provide a detailed and
comprehensible description of the problem and information on the system to be serviced.
Promptly upon request of the Provider, the Customer must provide all requested support
diagnostic and log files. The Customer must respond to additional questions from the
Provider without delay.
12.4 The Customer is obliged, upon request from the Provider, to provide all information
about the Customer, its Affiliates, and End Users that the Provider requires in order to fulfill
its statutory obligations.
12.5 License Verification for Checkmk Software (Self-Hosted). Upon commencement of
the Subscription Agreement, Customer must perform without undue delay the license
verification of its installation of the Checkmk Software (Self-Hosted) as described below and
in detail in the User Guide Software (Self-Hosted) (“License Verification Checkmk Software
(Self-Hosted)”). The Checkmk Software (Self-Hosted) remains in trial mode as long as the
license verification is not completed by the Customer. This is an active obligation of the
Customer. The license verification may be necessary for each Checkmk Instance.
The Provider may, at its sole discretion, implement an automatic online license verification
mechanism in the Checkmk Software (Self-Hosted). In this case, the Customer is obliged to
activate such online license verification in the Checkmk Software (Self-Hosted) which will
also trigger the periodic submission of the license usage reports with the content specified in
Section 12.7.
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For information security reasons, the Customer may request an offline license verification.
The offline license verification must not only be triggered upon commencement of the
Subscription Agreement as described above, but also additionally at least once a year no
later than six weeks before the end of the annual Subscription Period and include submission
of the license usage reports. The Provider also reserves the right to request the license
usage reports from the Customer at any time during the annual Subscription Period, which
the Customer must submit to the Provider within 10 business days.
12.6 License Activation for Checkmk Cloud (SaaS). Upon commencement of the
Subscription Agreement, Customer must perform without undue delay the license activation
as described in detail in the User Guide Cloud (SaaS) (“License Activation Checkmk Cloud
(SaaS)”). Checkmk Cloud (SaaS) remains in trial mode as long as the license activation is not
completed by the Customer. License activation is an active obligation of the Customer.
12.7 Usage Audits and Reporting
The Customer must provide the Provider information a) on the number of monitored
Services, and, b) if applicable, on the number of Synthetic Tests including Keywords and
Custom Metrics as well as about the usage of the virt1 add-on and the ntop integration, and
c) all similar information as described in detail in the User Guide Software (Self-Hosted) and
User Guide Cloud (SaaS) at any time upon request of the Provider. If underlicensing is
determined, the Subscription Agreement will be adjusted in accordance with Section 14.3
Once the Customer has performed either a License Activation Checkmk Cloud (SaaS)
(described in Section 12.5 above) or a online License Verification Checkmk Software
(Self-Hosted)(described in Section 12.6 above), Checkmk Software (Self-Hosted) and/or
Checkmk Cloud (SaaS) will periodically submit license usage reports with the content
specified in this Section 12.7.
13 Term and Termination
13.1 Unless otherwise agreed in the Subscription Agreement, the Subscription
Agreement will commence on the start date specified in the Subscription Agreement (the
“Effective Date”). The initial Subscription Period will be twelve (12) months, unless otherwise
set out in the Subscription Agreement (the “Subscription Period”). The Provider will not
provide any Services to the Customer prior to the Effective Date. Enhancements, upgrades,
and add-ons added during a current Subscription Period will run concurrently with the
underlying Subscription, unless expressly agreed otherwise.
13.2 The Subscription Agreement will automatically renew for an additional Subscription
Period equal to the most recent Subscription Period and with the most recent Subscription
size (including upgrades and add-ons), unless it is duly terminated. The notice period for
termination is three (3) months prior to the end of a Subscription Period of at least twelve
(12) months, and ten (10) days for a one‑month Subscription Period.
13.3 Any changes to the Subscription Agreement, or any partial termination of the
Subscription Agreement including Add-Ons, will only be effective as of the next Subscription
Period, subject to compliance with the applicable notice periods set out in Section 13.2 of the
GTC. Any expressly granted contractual termination rights, as well as the right to terminate
for cause in accordance with Section 13.4 of the GTC, remain unaffected by this Section 13.3
of the GTC.
13.4 Termination for Cause
13.4.1 The Provider may terminate the Subscription Agreement upon written notice to the
Customer a) with immediate effect upon the occurrence of a) the Customer’s material breach
of any obligations of confidentiality or data privacy, or b) of a material breach of a license
granted hereunder, or c) any other significant violation of the Provider’s intellectual property
rights, which in each case makes the continuation of the contractual relationship
unacceptable for the Provider; or b) if the Customer and/or an Affiliate of the Customer is in
default of its payment obligations and such default continues after the Provider has twice set
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a reasonable grace period for payment, both of which have expired unsuccessfully and d)
with respect to all other material breaches of the Subscription Agreement by the Customer, in
the event that the Customer fails to correct the breach within thirty (30) days after receipt of
written notice specifying the breach.
13.4.2 The Customer may terminate the Subscription Agreement upon written notice to the
Provider a) with immediate effect upon the occurrence of the Provider’s material breach of
any obligations of confidentiality or data privacy hereunder, which in each case makes the
continuation of the contractual relationship unacceptable for the Customer; and b) with
respect to all other material breaches of the Subscription Agreement by the Provider, in the
event that the Provider fails to correct the breach within thirty (30) days after receipt of
written notice specifying the breach.
13.5 In no event will the termination of the Subscription Agreement relieve the Customer
of its obligations to pay the Provider any fees and expenses accrued hereunder before such
termination.
13.6 Except as otherwise set forth in the Subscription Agreement, termination of the
Subscription Agreement by either party will be a non-exclusive remedy for breach and will be
without prejudice to any other right or remedy of such party.
13.7 All notices of termination must be given in text format (e.g., by post, email, or fax).
13.8 Upon termination of the Subscription Agreement, the usage rights granted, by the
Provider, to the Customer will terminate.
13.9 This Section 13 shall be amended for Customers of Checkmk, Inc.. For
such Customers, Section 3 of the U.S. STC “Term and Termination” shall apply in
addition to this Section 13.
14 Payment and Invoicing
14.1 The Customer is obliged to pay the Provider the price stated in the Subscription
Agreement in the currency specified therein (the “Subscription Fees”). Unless otherwise
agreed, the Provider will invoice the Subscription Fees to the Customer in advance at the
beginning of each Subscription Period. All invoices are due immediately upon receipt and
must be paid within fourteen (14) days, unless a different payment term has been agreed.
14.2 The Customer must select the Subscription size of the respective Checkmk
Software Edition (Self-Hosted) or Checkmk Cloud Edition (SaaS) that is expected to cover
the number of Licensed Services, Licensed Custom Metrics and Licensed Synthetic Tests
monitored under the Subscription Agreement during the Subscription Period.
14.3 This Section 14.3 of the GTC does not apply for Customers of Checkmk,
Inc.. For such Customers, Section 4.1 of the U.S. STC “Payment and Invoicing”
shall apply exclusively.
If the Customer wishes to increase the licensed subscription size during a current
Subscription Period, the Customer shall inform the Provider accordingly. The Subscription
Agreement will, in such cases, be upgraded to the appropriate subscription size retroactively
with effect as of the beginning of the current Subscription Period and the Customer will be
billed for the difference in the Subscription Price. The same shall apply if the Customer
exceeds the licensed subscription size.
14.4 The Provider reserves the right to adjust the Subscription Fees at the beginning of
each new Subscription Period. The Provider will inform the Customer of any price adjustment
at least three (3) months in advance. If the Customer does not agree to the price adjustment,
it may terminate the Subscription Agreement for cause with effect from the end of the
current Subscription Period. If the Customer does not terminate the Subscription Agreement,
the adjusted Subscription Fees will apply from the beginning of the respective renewal
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period.The foregoing shall apply accordingly in case of an adjustment of the calculation
methodologies described in Section 5.4.5 and Section 6.4.2 of the GTC.
14.5 This Section 14.5 of the GTC does not apply for Customers of Checkmk,
Inc.. For such Customers, Section 4.2 of the U.S. STC “Payment and Invoicing”
shall apply exclusively.
All prices are net, plus applicable value added tax, Goods and Services Tax (GST), or similar
taxes at the applicable statutory rate.
15 Proprietary Rights
15.1 Unless expressly set out in the Subscription Agreement, neither party acquires any
rights, title or interests in any intellectual property or proprietary rights, including copyrights,
moral rights, patent rights (including patent applications and disclosures), know-how, priority
rights, trademark rights and trade secret rights, that are recognized in any country or
jurisdiction in the world, including any modifications or improvements thereto (collectively
and generally referred to as “Intellectual Property Rights” ), that are owned by the other
party. Any rights not expressly granted in the Subscription Agreement are reserved to the
parties or their respective licensors. For the avoidance of doubt, and unless expressly set out
in the Subscription Agreement, the Provider (or, as applicable, its subcontractors and
third‑party technology licensors as set out in Section 7.4 of the GTC) owns the Intellectual
Property Rights in the Checkmk Software (Self‑Hosted), Checkmk Cloud (SaaS) and all
modifications, extensions, enhancements, derivative works, upgrades, new versions and
other changes thereto (even if requested or instructed by the Customer in any way).
15.2 To the extent that the Provider makes software, patches or other
copyright-protected works available as part of its support services, the provisions of the
underlying Subscription Agreement will apply to the use of such works. The Provider will
otherwise retain all rights of use and exploitation.
15.3 Feedback License. The Customer grants the Provider a worldwide, royalty‑free,
transferable, sublicensable, irrevocable, and perpetual license to freely use and exploit any
and all recommendations, improvements, requests, corrections, suggestions or other
feedback (collectively, “Feedback”) provided by or on behalf of the Customer relating to the
functionality or use of Checkmk Cloud (SaaS) and/or Checkmk Software (Self‑Hosted). The
Customer will ensure that it and each of its Affiliates (as applicable) is entitled to grant this
Feedback License to the Provider. The Feedback License includes the right to use and
integrate such Feedback into Checkmk Cloud (SaaS) and/or Checkmk Software
(Self‑Hosted) and otherwise freely exploit it without restrictions. The Customer will ensure
that providing the Feedback does not infringe any third‑party rights or breach any
confidentiality obligations.
16 Confidentiality
16.1 Each party will treat as confidential all information it receives from the other party in
connection with the Subscription Agreement, its initiation, formation and/or performance,
except where such information is expressly designated as non‑confidential or is, by its
nature, non‑confidential, such as:
a) information that the receiving party can demonstrate was lawfully known to it,
without any duty of confidentiality, prior to first disclosure by the disclosing party;
b) information that, at the time of disclosure, was already publicly known or readily
accessible, or that later becomes publicly known or readily accessible without any
breach by the receiving party of applicable confidentiality obligations;
c) information that a party receives in good faith from a third party who has lawfully
obtained such information and is not bound by a duty of confidentiality with respect
to it; or
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d) information that the receiving party has independently obtained without using the
disclosing party’s confidential information.
In particular, the following are deemed confidential: the components of the Checkmk
Software (Self‑Hosted) and Checkmk Cloud (SaaS) that are not also licensed under an
open‑source license, the access credentials and license keys, as well as the prices and
contractual terms individually agreed with the Customer. The confidentiality obligation also
extends to information that a party discloses to an Affiliate of the other party.
16.2 If information under Section 16.1 of the GTC does not meet the statutory
requirements of a “trade secret”, such information will nonetheless be subject to the
confidentiality obligations of this Section 16 of the GTC.
16.3 Each party undertakes to treat the other party’s confidential information confidential
and to only use it for contractual purposes. Except where the disclosure of confidential
information is necessary for the purposes of contractual performance, it may only be
disclosed to a third party with the prior written consent of the disclosing party. The receiving
party shall ensure that any third party is bound by a written confidentiality agreement at least
as strict as the provisions set forth under this Section 16 of the GTC prior to disclosure
(textform shall suffice). Disclosure without separate consent is permitted to a) persons
subject to a statutory duty of confidentiality, e.g. lawyers, notaries; b) Affiliates of the
receiving party; and c) subcontractors or advisors engaged by the receiving party for or in
connection with the performance of this Agreement, provided that they have been bound by
a written (textform shall suffice) confidentiality agreement consistent with the provisions of
this Section 16 of the GTC prior to disclosure. Disclosure to subcontractors or advisors shall
be limited to such information necessary for the performance of the respective services
under this Agreement (“Need-to-Know”). The receiving party shall be liable for any breach of
confidentiality by its Affiliates, subcontractors or advisors as for its own acts or omissions.
16.4 Each party agrees to protect the other party’s confidential information against
unauthorized access by third parties through appropriate safeguards, using at least the same
level of care that it uses to protect its own confidential information.
16.5 he parties will also require their employees to comply with confidentiality obligations
that are at least as strict as the provisions of this Section 16 of the GTC. Each party may only
share the other party’s confidential information with its employees, or otherwise make it
available to them, if they need to know such confidential information for the purposes of
contractual performance. Users of the Checkmk Software (Self‑Hosted) and Checkmk Cloud
(SaaS) must be reasonably informed of the content of the EULA.
16.6 The confidentiality obligations of this Section 16 of the GTC will remain in force for
the Subscription Period and for an additional period of five (5) years thereafter.
17 Data Protection and Data Utilization by the Provider
17.1 The Provider will process personal data of the Customer and Customers’ employees
only to the extent necessary for the contractual performance.
17.2 Data Processing Agreement
Data Processing Agreement. Where the Provider, in the course of providing its Services to
the Customer, processes personal data on behalf of the Customer, the Data Processing
Agreement (“DPA”) pursuant to Article 28 GDPR (applicable to customers of Checkmk
GmbH) or the U.S. Data Processing Agreement (“U.S. DPA”) (applicable to customers of
Checkmk, Inc.) forms an integral part of these Terms and Conditions and of the underlying
Subscription Agreement.
The most recent version of the DPA is available and can be accessed at
https://checkmk.com/legal/dpa and the most recent version of the U.S. DPA is available and
can be accessed at https://checkmk.com/legal/dpa-us. The DPA or U.S. DPA, whichever
applies, is a binding part of these Terms and Conditions and of the underlying Subscription
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Agreement. Where the Provider engages subprocessors for the processing of personal data,
the provisions of the DPA or, as applicable, the U.S. DPA will apply.
17.3 Functional Point of Contact. In the context of providing Checkmk OEM Support, no
personal data of the Customer is required beyond that of the Super User and the Customer’s
designated support contacts (see also Section 12.1). The contact details provided by the
Customer in this context are used solely as a functional point of contact for the technical
provision, coordination, and performance of OEM Support by the Provider.
17.4 Log Files. The Provider and the Customer agree that log files (e.g., IP addresses,
timestamps, access data) transmitted to the Provider in the context of the use of Checkmk
Software (Self-Hosted) do not constitute personal data for the Provider. Log files are
personal only for the party that has the ability to identify the natural person behind the log
files. The Provider does not possess any supplementary knowledge or the legal or factual
means to attribute the identifiers contained in the log files to a natural person. Accordingly,
the purely technical processing of log files does not constitute processing of personal data
on behalf of the Customer within the meaning of Article 28 GDPR.
17.5 Beyond the functional points of contact specified in Section 17.3 of the GTC, no
personal data may be transmitted to the Provider (in particular not within support tickets,
customer-specific plug-ins, log files, support files, or during live support), unless this is
technically strictly necessary for OEM Support. To the extent that personal data is
transmitted by the Customer to the Provider, the Customer warrants that a) it has complied
with all data protection laws applicable to it in connection with the collection or provision of
such personal data; b) it possesses all consents, authorizations, rights, and permissions
required to transfer the personal data to the Provider for the purpose of providing Checkmk
Software (Self-Hosted), Checkmk Cloud (SaaS), and Checkmk OEM support services, or to
permit the Provider to collect, receive, or access such personal data for these purposes; c)
to the extent required under applicable law, it has informed the data subjects of the
possibility that the Provider processes their personal data on behalf of the Customer and in
accordance with the Customer’s instructions; and d) it has, to the extent technically possible,
anonymized or pseudonymized the personal data prior to transmission.
17.6 Product Usage Analytics
17.6.1 For the purpose of analyzing the performance, developing, and improving Checkmk
Software (Self-Hosted), Checkmk Cloud (SaaS) and any related offerings of the Provider, the
Provider may collect, aggregate, reproduce, run, create derivative works of, process, use,
and analyze Service Generated Data (“Product Usage Analytics”). This applies to data: a)
transmitted automatically via the internet for Checkmk Software (Self-Hosted), provided the
Customer has actively opted-in via the respective function in the Checkmk Software
(Self-Hosted) (revocable at any time); b) transmitted automatically via the internet for
Checkmk Cloud (SaaS), provided the Customer has not actively opted-out via the respective
function in Checkmk Cloud (SaaS) at any time or c) submitted manually (e.g., agent/crash
dumps) in the context of any additional service or otherwise, unless the Customer instructs
the Provider otherwise when submitting such Service Generated Data.
17.6.2 Regarding the use of Checkmk Cloud (SaaS) only, the Provider may also collect,
aggregate, reproduce, run, create derivative works of, process, use and analyze Service
Generated Data for training, testing, validation and development of Provider`s own Provider’s
own machine learning algorithms, as well as for identifying patterns and correlations to
develop and optimize AI-based features and functionalities (e.g., to improve Checkmk Cloud
(SaaS) predictive monitoring capabilities and enhance the Customer’s experience and
interaction with Checkmk Cloud (SaaS)).
17.7 The Customer acknowledges the Provider’s Privacy Notice. The most recent version
of the Privacy Notice is available and can be accessed a
https://checkmk.com/privacy-policy.
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18 Engagement of Sub-processors
18.1 The Provider is entitled to engage sub-processors, in whole or in part, to provide the
contractually owed services under the respective Subscription Agreement. Prior consent
from the Customer is not required.
18.2 The Provider remains responsible to the Customer for the proper performance of
the contractually owed services under the respective Subscription Agreement, even if the
Provider utilizes sub-processors for the fulfillment of the respective Subscription Agreement.
18.3 To the extent the Provider engages sub-processors for the processing of personal
data, the provisions of the DPA apply respectively for Customers from the Checkmk GmbH
and the U.S. DPA apply respectively for Customers from the Checkmk, Inc..
18.4 The Provider maintains a list of all sub-processors engaged in connection with the
performance of the services provided under the Terms and Conditions. The most current
version of the subcontractor list is available and accessible at
https://checkmk.com/de/legal/sub-processors. The list also includes a registration option for
an information service through which the Customer will be actively notified of any changes
to the subcontractors engaged. Customers may be automatically notified of changes
regarding sub-processors by signing up to receive Trust Center notifications at
https://trust.checkmk.com/#subprocessors.
19 Data Act
This Section 19 of the GTC does not apply for Customers of Checkmk, Inc. and
shall be deleted without replacement.
For Customers contracting with Checkmk GmbH, the Special Terms and Conditions for
Contractual Partners of Checkmk GmbH for Data Exchange under the Data Act (the “STC
Data Act”) apply in addition to these terms for the use of Checkmk Cloud (SaaS). The most
recent version of the STC Data Act is available and can be accessed at
https://checkmk.com/legal/data-act. The STC Data Act forms an integral part of these Terms
and Conditions and the respective Subscription Agreement, where applicable.
20 Remedies for Defects
This Section 20 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 6 of the U.S. STC “LIMITED WARRANTIES; DISCLAIMER
OF WARRANTIES” shall apply exclusively.
20.1 The Provider warrants that, at the time it makes them available for use, Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS) conform to the specifications agreed in
the Subscription Agreement and are suitable for the contractually intended use.
20.2 The Provider does not provide any warranty for pre-release versions (e.g., beta,
preview, or test versions), daily builds, or for features, functionalities, or Services (including
language versions) that are designated as “free,” “unsupported,” “not supported,”
“experimental,” or “unstable.” Such versions, features, or functionalities are provided solely
for testing or evaluation purposes and are not intended for use in production systems. The
Provider will be liable for damages arising from the use of such versions, features, or
functionalities only in cases of intentional misconduct, gross negligence, or fraudulent
concealment of a defect.
20.3 Any warranty of specific properties or durability beyond the agreed specifications
exists only if expressly designated in text format as a “warranty”.
20.4 The Customer must notify the Provider of any defects without undue delay and in
text format. Such notice must contain a sufficiently detailed description of the symptoms, the
operating environment, and the specific circumstances and timing of their occurrence. The
Customer is obliged to provide the Provider with all information required to remedy a defect.
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If the Customer fails to provide notice of defects without undue delay, the Customer will be
obliged to compensate the Provider for any resulting damage (Section 536c of the German
Civil Code remains unaffected).
20.5 If a defect notice is unfounded, the Provider will be entitled to reimbursement of the
expenses it has incurred in connection with such notice at the agreed or, in the absence of
such agreement, the then-current market rates, provided that the Customer has at least
negligently failed to recognize that no defect exists.
20.6 Claims for the correction of defects are excluded if the defect is not reproducible or
cannot be demonstrated on the basis of documented outputs.
20.7 In the event of material defects, the Provider will restore contractually compliant use
by correcting errors or, in the case of Checkmk Cloud (SaaS), by updating the Services, as
soon as and to the extent this is possible and reasonable for it.
Providing the Customer with a reasonable workaround that avoids the defect will also be
deemed to constitute restoration of contractually compliant use, provided that the
contractual use is only impaired to an insignificant extent.
If a defect only insignificantly impairs the suitability of Checkmk Software (Self-Hosted) or
Checkmk Cloud (SaaS) for contractually compliant use, the Provider will be entitled to
remedy the defect as part of its regular release and update planning.
20.8 The Customer will support the Provider in remedying defects to a reasonable extent.
In particular, the Customer will (i) enable the Provider to access the software via screen
sharing for the purpose of analyzing and correcting defects, with the Customer establishing
the necessary connections in accordance with the security requirements of both parties; and
(ii) install new versions, updates, or patches to the extent this is required to correct the
defect, is reasonable for the Customer in light of its system environment, and the
contractually agreed scope of functionality is essentially preserved.
20.9 The Customer will have no warranty claims
a) in the case of only insignificant deviations from the agreed specifications;
b) in the case of only insignificant impairments of usability;
c) where the defect is due to non-conforming use, improper operation, or faulty
installation by the Customer or third parties;
d) where the Customer has failed to implement updates, patches, or configuration
specifications provided to the Customer and the defect is based thereon;
e) where the defect is attributable to changes, adaptations, or extensions of Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS) by the Customer or by third
parties on behalf of the Customer, unless the Customer proves that the defect was
not caused by such changes;
f) where the defect is due to a system environment that is not the responsibility of the
Provider, in particular IT infrastructure provided by the Customer; or
g) where the defect is due to a breach of the Customer’s cooperation or information
obligations.
20.10 The Customer may terminate the Subscription Agreement for cause due to the
Provider’s failure to provide the Services in conformity with the contract only if the Provider
has been given sufficient opportunity to correct the defect and such correction has failed.
The correction of defects will be deemed to have failed only if it is impossible, if it is refused
by the Provider or unreasonably delayed, if there are justified doubts as to the prospects of
success, or if unreasonableness exists for other reasons. In assessing the reasonableness of
the period to correct the defects, the specific circumstances must be taken into account, in
particular the cause, severity, and effects of the defect. In all other respects, Section 13 of
the GTC applies to the termination and expiry of the Subscription Agreement.
20.11 The Customer’s right to correct defects itself or through third parties and to claim
reimbursement of the necessary expenses, including in cases where the Provider is in
default with the correction of defects or an immediate correction of defects is required to
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preserve or restore the condition of Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS), is expressly excluded.
20.12 Notwithstanding Section 22.7 of the GTC, the limitation period for all warranty claims
is one (1) year. This does not apply to claims based on intentional misconduct or gross
negligence, injury to life, body, or health, fraudulent concealment of a defect, or where
mandatory statutory provisions provide for longer limitation periods.
20.13 Defects in Title. The foregoing provisions apply accordingly to defects in title,
except as otherwise set forth below:
The Provider warrants that the Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS),
when used by the Customer in accordance with the Subscription Agreement, do not infringe
any third-party rights. If the Customer is unable to use the provided Checkmk Software
(Self-Hosted) or Checkmk Cloud (SaaS) as contractually intended due to a conflicting right
of a third party, the Provider may, at its option, either a) modify the Services so that the
third-party right is no longer infringed, or b) procure for the Customer the rights necessary to
use the Services.
The Customer will have no claims based on defects in title to the extent the alleged
infringement results from
a) non-contractual use of the Checkmk Software (Self-Hosted) or the Checkmk Cloud
(SaaS),
b) changes or adaptations by the Customer or by third parties engaged by it,
c) a combination of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) with
third-party services or products that were not provided or intended for this purpose
by the Provider,
d) use outside the contractually agreed operating environment or agreed country of
use, or
e) use of a non-current version, provided the Provider has made a non-infringing
version available to the Customer and use of this version would have been
reasonable.
The Customer’s statutory duties to give notice of defects remain unaffected.
21 Remedies for Defective Checkmk OEM Support Services
This Section 21 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, the provision of Section 6 of the U.S. STC “LIMITED
WARRANTIES; DISCLAIMER OF WARRANTIES” shall apply exclusively.
If the Provider fails to perform the Checkmk OEM Support Services in accordance with the
Subscription Agreement, it will be entitled to re-perform the relevant Checkmk OEM Support
Services at no additional charge, to the extent re-performance is possible and reasonable for
the Customer. The Customer will grant the Provider a reasonable cure period for such
re-performance. If the cure period expires without successful re-performance, or if the
Provider refuses to re-perform, the Customer will have the right to terminate the Subscription
Agreement for cause. Any claims for damages or reimbursement of expenses are subject to
the limitations set forth in Section 22 of the GTC.
22 Limitation of Liability
This Section 22 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 8 of the U.S. STC “LIMITATIONS OF LIABILITY” shall
apply exclusively.
22.1 The Provider will be liable for damage caused by slight negligence only if such
damage results from a breach of material obligations that jeopardizes the achievement of the
purpose of the contract, or from a breach of obligations whose fulfillment is essential for the
proper performance of the contract (“Kardinalpflichten”).
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22.2 In the cases covered by Section 22.1 of the GTC, the Provider’s liability is limited to
the usually foreseeable damage for this type of contract.
22.3 In the cases covered by Section 22.1 of the GTC, the Provider’s liability is in any
event limited in amount as follows:
22.3.1 For each individual occurrence of damage, to a maximum of twenty-five percent
(25%) of the net Subscription Fees paid to the Provider in the respective Subscription Period;
and
22.3.2 for all occurrences of damage during one Subscription Period, to a maximum of fifty
percent (50%) of the net Subscription Fees paid to the Provider in the respective
Subscription Period.
In the case of a multi-year Subscription Period, the limitation of liability applies to the
respective current period of twelve (12) month period starting from its respective
commencement date. The maximum liability amount is calculated pro rata temporis for this
twelve (12) month period.
22.4 In the cases covered by Section 22.1 of the GTC, the Provider will not be liable for
lost profits, nor for impairments that are attributable to maintenance activities carried out by
the Customer.
22.5 Liability regardless of fault under Section 536a Paragraph 1 Alt. 1 of the German Civil
Code (“BGB”) for defects already existing at the time of entry into the contract is excluded. In
all other respects, in the event of defects, the provisions of this Section 22 of the GTC on
liability for damage will apply to the Customer’s claims for damages.
22.6 The Provider shall only be liable for the loss of data and programs, as well as for
business interruptions, to the extent that the damage would not have been avoidable even
with reasonable precautions taken by the Customer. Such reasonable precautions by the
Customer, in accordance with the state of the art, include in particular:
22.6.1 for Checkmk Software (Self-Hosted) the creation of backup copies of all programs
and data at least once a day, the testing of updates in a test environment prior to deployment
in the production system, and the establishment of a Disaster-Recovery-Plan;
22.6.2 for Checkmk Cloud (SaaS) the regular backup of Customer specific configurations
and data (to the extent exportable), as well as the establishment of contingency plans in the
event of a temporary unavailability of the service.
This limitation shall not apply if the damage was caused by the Provider through gross
negligence or willful misconduct. All liability for loss of data is subject to the other
restrictions in this Section 22 of the GTC.
22.7 All claims for damages and indemnification by the Customer arising from or in
connection with the Subscription Agreement are time-barred no later than one (1) year from
the date the respective reason of the claim arises.
22.8 The foregoing limitations of liability apply to all claims for damages and
reimbursement of expenses, regardless of the legal basis, including claims in tort, unless a
warranty has been assumed, the damage results from intentional or grossly negligent
conduct or from fraudulent concealment of defects, or the damage consists of personal
injury.
22.9 The above limitations on liability also apply where a claim for damages is brought
against an employee or an agent of the Provider.
23 Indemnification
This Section 23 of the GTC does not apply for Customers of Checkmk, Inc.. For
such Customers, Section 7 of the U.S. STC “INDEMNITIES” shall apply
exclusively.
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23.1 The Provider will defend the Customer from and against any and all claims, demands
and actions (hereinafter each a “Claim”) incurred by or asserted against the Customer by a
third party to the extent that such Claim results from the infringement of the contractually
permitted use of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) upon the third
party’s Intellectual Property Rights and will as a result reimburse the Customer for any
damages (including reasonable attorney’s fees incurred by the Customer that are specifically
attributable to such Claim) finally awarded against the Customer by a competent court or
those costs and damages agreed to in a monetary settlement of such an Claim (to which the
Provider has expressly consented), provided that the Customer a) promptly, but not later
than within ten (10) days from the knowledge of the Claim, notifies the Provider of such Claim
after it becomes aware of it; b) gives the Provider the right to control and direct the
preparation of a defense at the Provider’s expense to the extent permitted by applicable law;
c) provides reasonable cooperation to the Provider for the defense of suchClaimat the
Provider’s sole cost and expense; and d) does not make any admission in respect of the
liabilities without the consent of the Provider. The limitation period for the indemnification
claim governed by this Section corresponds to the limitation period applicable to the
Customer’s warranty claims for defects in title.
23.2 The Provider will have no obligation of defense or indemnification or otherwise with
respect to any Claim relating to a) any cases as described in Section 20.2 of the GTC; b) any
situation where the Customer continues the allegedly infringing activity after being notified
thereof and is provided with reasonably acceptable modifications, replacements or other
remedies that would have avoided the alleged infringement; c) an Claim that does not relate
with specificity to Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS); d) the use or
combination of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) or any part
thereof with materials not developed by the Provider whereCheckmk Software (Self-Hosted)
or Checkmk Cloud (SaaS) or use thereof would not constitute infringement but for said
combination; or e) with regard to patent claims, an Claim where Checkmk Software
(Self-Hosted) or Checkmk Cloud (SaaS) consists of a function, system or method that utilizes
functionality that is in general use in the industry.
23.3 The Customer must defend, indemnify and hold the Provider harmless against all
costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in
connection with any claim (each, a “Non-Conforming or Misuse Claim”) that a) alleges that
a use of Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) by the Customer, which
is not in accordance with the Subscription Agreement, infringes or misappropriates any right
of a third party, in particular Intellectual Property Rights of a third party; b) results or arises
from the Customer providing access credentials or any other access data regarding
Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) to unauthorized third parties
contrary to the terms of the Subscription Agreement; c) results or arises from any data,
information or other input entered into Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) by the Customer, as well as any use that violates the acceptable use of Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS) as set out in Section 10 of the EULA
“Acceptable Use Policy”; or d) that results or arises from Customer’s violation of applicable
law, in each case provided that such Non-Conforming or Misuse Claim is caused by the
Customer's fault or negligence. The Provider will a) notify the Customer in writing (text
format being sufficient) without undue delay after becoming aware of any Non-Conforming
or Misuse Claim; b) grant the Customer sole control over the defense, litigation, negotiation,
and settlement of the Non-Conforming or Misuse Claim (provided that the Customer may
settle or defend such claim only if it unconditionally releases the Provider from any liability in
connection therewith); and c) provide the Customer, at the Customer’s expense, with all
reasonable assistance requested by the Customer.
24 Export Control
24.1 The Customer must comply with all relevant national, European and – if applicable –
U.S. export control laws and regulations, including their sanctions and embargoes, in their
respective valid versions (“Export Control Regulations”) when accessing, using, and, if
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applicable, making available Checkmk Cloud (SaaS), data and information (“Export Data”)
that the Provider provides.
24.2 Prior to accessing, using and/or making available the Export Data or carrying out any
other activity in connection with the Export Data provided by the Provider (“Transfer of the
Export Data”), the Customer must, inter alia, verify and ensure through the adoption of
suitable measures
24.2.1 that the Transfer of the Export Data does not violate the provisions of any EU and – if
applicable – U.S. embargo including account restrictions on domestic transactions and
prohibitions of circumvention that are specified therein;
24.2.2 that the Export Data will not be used for nuclear purposes, purposes related to
weapons of mass destruction WMD or for military purposes in a country under an arms
embargo (“Sensitive Uses”) or transferred to third parties who intend to use the data for
Sensitive Uses;
24.2.3 that the EU and – if applicable – U.S. sanctions lists (i.e., those of the U.S. authorities
BIS and OFAC) concerning business transactions with the persons, companies and
organizations specified therein are complied with; and
24.3 that the Export Data will, in particular, not be passed on to persons or companies
whose residential or registered office is located in countries or territories subject to
economic sanctions (embargoes), such as - currently - Belarus, Iran, Cuba, North Korea,
Russia, the Russian-occupied territories of Ukraine (Crimea, Sevastopol, Kherson, Donetsk,
Luhansk, Zaporizhzhia), Sudan, and Syria.
24.4 The Subscription Agreement is concluded and performed by the Provider subject to
the condition that there are no restrictions based on the Export Control Regulations (i.e.,
prohibitions, licensing obligations), which stand in the way of conclusion of contract or
performance.
24.5 The Customer must indemnify and hold the Provider harmless from and against all
actions and claims resulting from a violation of this Section 24 of the GTC, unless the
Customer is not responsible. The Customer must compensate the Provider for any damage,
loss or costs that the Provider incurs due to a violation of Section 24 of the GTC, unless the
Customer is not responsible.
25 Trial Version, POC Version and Free Version
25.1 The Provider may offer a prospective customer the opportunity to test Checkmk
Software (Self‑Hosted) and Checkmk Cloud (SaaS), or parts thereof limited to a restricted
number of Licensed Services, on a trial basis and, unless agreed otherwise, free of charge,
either by downloading Checkmk Software (Self‑Hosted) directly from the Provider’s website
or from a third‑party operated cloud marketplace, or by using Checkmk Cloud (SaaS) via a
self‑registration process on the Provider’s website or other registration channels made
available by the Provider. In the case of Checkmk Software (Self‑Hosted), the contract is
entered into upon download or, if obtained via a cloud marketplace, upon the Order or
activation of the Checkmk Software (Self‑Hosted), in each case incorporating these Terms
and Conditions; in the case of Checkmk Cloud (SaaS), the contract is entered into upon
successful completion of the registration/sign‑up process. The Provider’s Contractual
Partner is the user of the software. If the software is used on behalf of a legal entity, public
body, or authority, that entity, body, or authority is deemed to be the user. The person
performing the actions described in Section 25.1 of the GTC in that case acts on behalf of
such legal entity, public body, or authority. The statutory provisions applicable to
free‑of‑charge use apply.
25.2 Trial Period. The Provider will inform the prospective customer of the duration and
scope of any Trial Version or POC Version directly on its website and/or in the applicable
Order. Any Trial Version or POC Version will automatically end upon expiry of the period
specified on the website and/or in the Order.
25.3 The prospective customer may use a Trial Version or POC Version only for its
internal evaluation and testing purposes. In particular, the prospective customer is not
permitted to:
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25.3.1 use a Trial Version or POC Version in a production environment (that is, in any
environment in which the Checkmk Software (Self‑Hosted) or Checkmk Cloud (SaaS) is used
to conduct operational or business activities, in particular in connection with the processing
of real data of the prospective customer or third parties that has a direct impact on the
business activities of the prospective customer or third parties); and
25.3.2 without the Provider’s express consent (at least in text format), replace or modify
authorized users or grant access to a Trial Version or POC Version to any third party that is
not a relevant third‑party provider engaged by the prospective customer, including by
sharing access credentials; or
25.3.3 to use a Trial Version or POC Version to provide services to third parties and/or
make a Trial Version or POC Version available to them, or to offer to provide or make services
available using a Trial Version or POC Version.
25.4 The Provider will determine, in its sole discretion, whether the use of a Trial Version
or POC Version meets the requirements of Sections 25.4 and 25.5 of the GTC
25.5 The Provider may offer the prospective customer the continuation and/or upgrade of
a Trial Version or POC Version in return for payment of the applicable Subscription Fees. In
such case, Section 14 applies accordingly.
25.6 The Provider makes any Trial Version or POC Version available strictly on an “as is”
basis. In this context, the Provider does not assume any warranty for the functionality or
other specifications of the respective Trial Version or POC Version and, in particular with
respect to Checkmk Cloud (SaaS), does not warrant its availability (as described in the
Service Description Checkmk OEM Support and SLAs).
25.7 The Provider may, at any time and in its sole discretion, without prior notice and
without stating reasons, change, expand, restrict, or discontinue the content, structure, or
scope of any Trial Version or POC Version..
25.8 The Provider is under no obligation to provide support services for any Trial Version
or POC Version.
25.9 This Section 25.9 of the GTC does not apply to Customers of Checkmk,
Inc.. For such Customers, Section 8 of the U.S. STC “LIMITATIONS OF LIABILITY”
shall apply exclusively.
Except in cases of a) intentional misconduct or gross negligence, b) fraudulent concealment
of a defect in a Trial Version or POC Version by the Provider, or c) injury to life, limb, or
health, the Provider does not assume any warranty or liability.
25.10 No right of revocation applies with respect to any Trial Version or POC Version. The
user may at any time delete any copies of the Checkmk Software (Self‑Hosted) it has created
and/or any access to Checkmk Cloud (SaaS), thereby terminating the contract for the use of
Checkmk Software (Self‑Hosted) or Checkmk Cloud (SaaS) as a Trial Version or POC
Version.
25.11 Product Usage Analytics for Trial Versions
For the purpose of analyzing the performance, developing, and improving the Checkmk
Software (Self-Hosted), Checkmk Cloud (SaaS) and any related offerings of the Provider, the
Provider may collect, aggregate, reproduce, run, create derivative works of, process, use,
and analyze Service Generated Data (“Product Usage Analytics”) within the usage of a Trial
Version. This applies to data: a) transmitted automatically via the internet for Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS), provided the Customer has not actively
opted-out via the respective function in Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) at any time or b) submitted manually (e.g., agent/crash dumps) in the context of any
additional service or otherwise, unless the Customer instructs the Provider otherwise when
submitting such Service Generated Data.
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Regarding the usage of a Trial Version of Checkmk Cloud (SaaS) only, the Provider may also
collect, aggregate, reproduce, run, create derivative works of, process, use and analyze
Service Generated Data for training, testing, validation and development of own algorithms
for machine learning and finding patterns and correlations for purposes in connection with
purposes related to AI (e.g., to improve Checkmk Cloud (SaaS) predictive monitoring
capabilities and enhance the Customer’s experience and interaction with Checkmk Cloud
(SaaS)).
25.12 The prospective customer acknowledges that, when Checkmk Cloud (SaaS) is used
as part of a Trial Version or POC Version, the Provider does not create backups of the
prospective customer’s data.
25.13 In the context of a Trial Version or POC Version of Checkmk Cloud (SaaS), and by
way of exception to Section 6.4.1 a) of the GTC, the prospective customer may not exceed a
number of 10,000 Custom Metrics and the data transmission frequency is no more than once
every 30 seconds. The measures taken by the Provider set out in Section 6.4.1 b) of the GTC
apply accordingly if these limits are exceeded.
25.14 Free Version. A Free Version includes the operation of a minimal installation with a
maximum of one (1) Checkmk instance for monitoring a limited number of Services. Access
to the interfaces of the Checkmk Software (Self-Hosted) with the aim of displaying monitored
Services from multiple Checkmk instances in a single view is not permitted. The use of
add-ons is also not included. However, the use of up to three (3) Synthetic Tests is
permitted. For a Free Version, the provisions of this Section 25 of the GTC regarding a Trial
Version and POC Version apply accordingly, except for Sections 25.11 and 25.13 of the GTC.
26 Force Majeure
This Section 26 of the GTC does not apply to Customers of Checkmk, Inc.. For
such Customers, Section 9 of the U.S. STC “Force Majeure” shall apply
exclusively.
If the provision of the Checkmk Software (Self‑Hosted) or Checkmk Cloud (SaaS) is delayed
or temporarily impossible due to circumstances that the Provider could not have foreseen
even by exercising the highest degree of care that can reasonably be expected (for example,
epidemics, pandemics, fires, explosions, power outages, earthquakes, floods, severe storms,
strikes, embargoes, acts of civil or military authorities, war, terrorism (including
cyber‑terrorism), or a network outage not attributable to the Provider) (each, a “Force
Majeure Event” ), the applicable performance periods will be extended by a period equal to
the duration of the Force Majeure Event. The Provider will inform the Customer in text format
without undue delay of the impossibility of providing the Checkmk Software (Self‑Hosted)
and Checkmk Cloud (SaaS). If a Force Majeure Event continues without interruption for more
than ninety (90) days, the Customer may terminate the Subscription Agreement in text
format with immediate effect and without notice. In such case, the Customer will pay the
Provider the agreed Subscription Fees for the Checkmk Software (Self‑Hosted) and
Checkmk Cloud (SaaS) already provided, and the Provider reserves the right to assert any
further statutory claims against the Customer..
27 Governing Law
27.1 For Customers of the Checkmk GmbH. The Terms and Conditions will be governed
by, and construed in accordance with, the laws of the Federal Republic of Germany. The
conflict‑of‑laws rules of private international law and the United Nations Convention on
Contracts for the International Sale of Goods (CISG) do not apply.
27.2 For Customers of the Checkmk, Inc.. The Terms and Conditions will be governed
by, and construed in accordance with, the laws of the State of Delaware, without regard to its
conflict‑of‑laws rules. The United Nations Convention on Contracts for the International Sale
of Goods and the Uniform Computer Information Transactions Act, as it may be enacted in
any applicable jurisdiction, do not apply to the Terms and Conditions.
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28 Jurisdiction
28.1 For Customers of the Checkmk GmbH. The courts of Munich in Germany will have
jurisdiction over any and all disputes arising out of or in connection with these GTC. The
Provider reserves the right to bring an action against the Customer at the Customer’s general
place of jurisdiction or at the place of performance. Mandatory statutory provisions, in
particular those on exclusive jurisdiction, will remain unaffected.
28.2 For Customers of the Checkmk, Inc.. The parties agree to submit to the personal
and exclusive jurisdiction of the courts located within Delaware. If either party employs
attorneys to enforce any rights arising out of or related to the Subscription Agreement, the
prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the
other party. For purposes of this Section only, “prevailing party” means the party that
prevails on a majority of causes of action in such a dispute.
29 Final Provisions
29.1 This Section 29.1 of the GTC does not apply for Customers of Checkmk,
Inc.. For such Customers, Section 10.5 of the U.S. STC “Final Provisions” shall
apply exclusively. The Provider reserves the right to amend or update these Terms and
Conditions at any time if required for legal, technical or operational reasons. Any changes to
these Terms and Conditions will be communicated to the Customer at least six (6) weeks
before the effective date of such changes. The Customer will be deemed to have agreed to
the amended or updated Terms and Conditions unless it objects to the changes in text format
within the notice period. In this case, the Customer has the right to terminate the
Subscription Agreement for cause. In the notice regarding the amendment or update of these
Terms and Conditions, the Provider will inform the Customer of its right to terminate for
cause.
29.2 Relationship of the Parties. The parties to the Subscription Agreement are at all
times independent contractors, and nothing in the Subscription Agreement will be construed
as creating a partnership, employment, agency or other joint venture relationship. Neither
party will have the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
29.3 Third Party Beneficiaries. Unless otherwise expressly agreed in writing by the
parties, no provisions of the Subscription Agreement are intended or will be construed to
confer upon or give to any person or entity other than the Customer and the Provider any
rights, remedies or other benefits under or by reason of the Subscription Agreement.
29.4 No Waiver. The failure by either party to enforce any provision of the Subscription
Agreement will not constitute a waiver of future enforcement of that or any other provision.
29.5 Survival. The rights and obligations of the parties which by their nature are intended
to survive the termination or expiration of the Subscription Agreement, including, but not
limited to, provisions regarding confidentiality, intellectual property rights, limitation of liability,
indemnification, and governing law as well as relevant terms of the EULA, shall remain in full
force and effect after termination of the respective Subscription Agreement.
29.6 Headings. The headings used in these Terms and Conditions are for reference only
and do not change the meaning of any provision of the Terms and Conditions for Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS), and will not be used in interpretation of
any provision of the terms and conditions. When used herein, the term “includes” or
“including” means “including but not limited to”.
29.7 The Customer grants the Provider the right to use the Customer’s company name
and logo on the Provider’s website, in customer lists, and in marketing materials to indicate
that the Customer is a customer of the Provider and uses the Provider’s products and
services.
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29.8 These Terms and Conditions and the Subscription Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof and supersede all
prior agreements between them. Any conflicting, deviating, or additional provisions in the
Customer’s general terms and conditions will become part of the Subscription Agreement
only if and to the extent the Provider has expressly agreed to them. This consent requirement
applies in all cases, including where the Provider, with knowledge of the Customer’s general
terms and conditions, performs deliveries or services without reservation. A registration of
the Provider in a customer supplier portal or other platform that is necessary for performance
of the contractual relationship and that requires the Provider to accept the Customer’s terms
and conditions does not constitute express consent; any such terms and conditions do not
become part of the contract.
29.9 Amendments or additions are effective only if the corresponding declaration by the
Provider is made at least in text format (for example, by post, email, or fax); this also applies
to any waiver of the text format requirement.
29.10 Any assignment, transfer, sale, gift, loan, rental, or lease of rights under the
Subscription by the Customer is prohibited. A resale is only permitted on the basis of a
separate agreement with the Provider.
29.11 The Customer may only set off counterclaims that are undisputed or nonappealable.
This limitation does not apply where the respective claims are mutually dependent.
29.12 If any individual provisions of this contract are or become wholly or partially invalid,
or if there are any gaps in the provisions, the validity of the remaining provisions is not
affected. The parties agree to replace the invalid provision with a valid one that most closely
reflects the economic purpose of the invalid provision. In the event of any gaps, the parties
agree to include a provision that corresponds to what they would have agreed upon, in line
with the meaning and purpose of the Order, had they considered the matter at the time of
entering into the contract.
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B. Special Terms and Conditions for Customers of
Checkmk, Inc. (U.S. STC)
For Customers of the Checkmk, Inc. these Special Terms and Conditions
for Customers of Checkmk, Inc. (U.S. STC) apply in addition to the GTC`s
set out in part A of the Terms and Conditions.
1. Suspension
Section 9 of the GTC “Suspension” does not apply to Customers of Checkmk, Inc. and is
replaced by the following clause: “The Provider has the right to immediately suspend the
Customer’s and/or the Customer’s Affiliate’s (if applicable) access to and use of Checkmk
Software (Self-Hosted), Checkmk Cloud (SaaS) and/or the Checkmk OEM Support Services
(partially or in full) if the Provider assumes a) a violation of the provisions of the Subscription
Agreement or the EULA (in particular the Acceptable Use Policy); b) a violation of applicable
law; c) a breach by the Customer of its material payment obligations, d) a security threat or
vulnerability that poses a risk to Checkmk Software (Self-Hosted), Checkmk Cloud (SaaS),
the Provider’s systems or other customers of the Provider; or e) any activity or use of
Checkmk Software (Self-Hosted), Checkmk Cloud (SaaS) that causes or is likely to cause
degradation, disruption, or other negative impact the Checkmk Software (Self-Hosted),
Checkmk Cloud (SaaS) or other customers of the Provider. If the Provider suspends access
to and use of Checkmk Software (Self-Hosted), Checkmk Cloud (SaaS), the Provider will
notify the Customer of the reason for the suspension without undue delay, to the extent
legally permitted. The suspension will be to the minimum extent and for the shortest
duration required to resolve the reason for the suspension.“
2. Modifications and Discontinuation of Service Components
Section 11 of the GTC “Modifications and Discontinuation of Service Components” does
not apply to Customers of Checkmk, Inc. and is replaced by the following clause:
“Modifications and Deprecations of Service Components
a) Subject to and in accordance with this Section 2 of the U.S. STC, the Provider may
modify or discontinue any of the features or functionality of Checkmk Software
(Self-Hosted) and Checkmk Cloud (SaaS) for any reason at any time without liability
to the Customer.
b) In order to maintain a progressive and modern product experience and/or in order to
keep up with good industry standards regarding security, reliability or regulatory
compliance, the Provider reserves the right to make modifications to Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS) from time to time, provided such
modifications do not result in a material reduction of the functionality, performance,
availability, or security of Checkmk Software (Self-Hosted) and Checkmk Cloud
(SaaS). Such modifications may relate to any features or functionality and/or the
limitations of Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS).
c) In the event that the Provider intends to discontinue any material feature or
functionality of Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS), the
Provider will inform the Customer of such intention reasonably in advance before
such discontinuation comes into effect, in each case unless the Provider replaces
such discontinued material feature or functionality of Checkmk Software
(Self-Hosted) and Checkmk Cloud (SaaS) with a materially similar feature or
functionality.
The provisions of this Section 2 of the U.S. STC do not limit the Provider’s ability to modify or
discontinue Checkmk Software (Self-Hosted) and Checkmk Cloud (SaaS) if required to
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comply with applicable law, address a material security risk, or apply to new or pre-general
availability services or functionality.”
3. Term and Termination
Section 13 of the GTC “Term and Termination” is supplemented as follows for Customers
of Checkmk, Inc.: “Upon termination of the Subscription Agreement in accordance with this
Section 3 of the U.S. STC and the entire Section 13 of the GTC, the Customer will not be
entitled to any separation compensation or damages of any kind, including indemnification,
compensation, reimbursement or damages for loss of prospective compensation, goodwill or
loss thereof, or expenditures, investments, leases or any type of commitment made in
connection with the business of the Customer or in reliance on the existence of the
Subscription Agreement including, but not limited to advertising and promotion costs, costs
of supplies, termination of employees, employee salaries and other such costs and
expenses.”
4. Payment and Invoicing
Section 14 of the GTC “Payment and Invoicing” is amended as follows for Customers of
Checkmk, Inc.:
4.1. Section 14.3 of the GTC “Payment and Invoicing” does not apply to Customers of
Checkmk, Inc. and is replaced by the following clause: “The Provider may modify
the Subscription Fees at any time up to an amount of eight (8) percent of the annual
aggregate pricing of the preceding Subscription Period (where ‘pricing’ includes the
Subscription Fees and any other payment obligations of the Customer), unless
otherwise expressly agreed in the Order explicitly mentioning this Section 4.1 of the
U.S. STC. The Provider will notify the Customer at least three (3) months in advance
of any such price increases. The Customer’s outstanding payment commitments (if
any) that have accrued before the effective date of such termination are not
affected.”
4.2. Section 14.5 of the GTC “Payment and Invoicing” does not apply to Customers of
Checkmk, Inc. and is replaced by the following clause: “All payments required by
the Subscription Agreement are exclusive of federal, state, local and foreign taxes,
duties, tariffs, levies, withholdings and similar assessments including sales taxes, use
taxes and value added taxes, and the Customer agrees to bear and be responsible for
the payment of all such charges, excluding taxes based upon the Provider's net
income. All amounts due hereunder shall be grossed-up for any withholding taxes
imposed by any foreign government. If the Customer claims exemption from any tax,
then it shall furnish the Provider with a valid tax exemption certificate issued by or
acceptable to the applicable taxing jurisdiction or entity. The Customer will indemnify
and hold the Provider harmless from, any such tax (excluding taxes on the Provider’s
net income) as well as the collection or withholding thereof, including penalties
and/or interest.
If the Customer fails to make any payments when due, the Provider reserves the right
to add a late charge of 1.5% per month, or the maximum allowable under applicable
law, whichever is lower, from the original due date until paid. The Customer will also
reimburse the Provider for all amounts incurred by the Provider (including reasonable
attorneys’ fees) in collecting amounts due hereunder.”
5. Data Act
Section 19 of the GTC “Data Act” does not apply to Customers of Checkmk, Inc. and is
deleted without replacement.
6. LIMITED WARRANTIES; DISCLAIMER OF WARRANTIES
Section 8.3.5 of the GTC “Disclaimer of Warranty regarding AI-Output”, Section 20 of the
GTC "Remedies for Defects” and Section 21 of the GTC “Remedies for Defective Checkmk
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OEM Support Services” do not apply to Customers of Checkmk, Inc. and are replaced by
the following clauses:
6.1. Software Warranty. The Provider warrants to the Customer that during the
Subscription Period the Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS),
as the case may be, will perform materially in conformance with the User Guide in all
material respects. With respect to Checkmk Software (Self-Hosted), the foregoing
warranty applies only to failures in operation of the Checkmk Software (Self-Hosted)
that are verifiable and does not apply to any Open Source Components as defined in
the EULA.
6.2. Services Warranty. The Provider warrants to the Customer that it will perform the
Checkmk OEM Support Services or other support services (as applicable) in a
professional and workmanlike manner; provided that the Customer must report any
non-compliance with this warranty within 30 days of delivery of the applicable
Checkmk OEM Support Services or other support services.
6.3. Malware Warranty. With respect to Checkmk Software (Self-Hosted), the Provider
warrants that it shall use reasonable technical means designed to detect and screen
computer viruses from Checkmk Software (Self-Hosted) or Checkmk OEM Support
Services or other support services provided by Provider. The Malware Warranty does
not apply to Open Source Components.
6.4. Exclusive Remedies. The Customer’s exclusive remedy and the Provider’s entire
liability for any breach of the above warranties shall be as set forth below:
a) Software Warranty. The Provider shall use commercially reasonable efforts
to correct or provide a workaround for reproducible software errors with
respect to Checkmk Software (Self-Hosted), or performance errors with
respect to Checkmk Cloud (SaaS), that cause a breach of this warranty. If
the Provider is unable to make the Checkmk Software (Self-Hosted) or
Checkmk Cloud (SaaS) service operate as warranted within a reasonable
time (which may be when the Provider issues its next regularly scheduled
update), the Provider may terminate the Subscription Agreement and refund
the Subscription Fees paid to the Provider for the remainder of the
Subscription Period;
b) Services Warranty. The Provider shall re-perform any Checkmk OEM
Support Services or other support services that fail to meet the service
warranty. If the Provider is unable to perform the Checkmk OEM Support
Services or other support services as warranted, the Provider shall refund
the portion of the Subscription Fees paid to the Provider for the
nonconforming Checkmk OEM Support Services or other support services;
c) Malware Warranty. In the event of a breach of the malware warranty, the
Provider shall replace all copies of the affected Checkmk Software
(Self-Hosted) in the possession of the Customer with copies that do not
contain such virus or disabling code.
6.5. Warranty Exclusions, Conditions and Limitations. The Provider has no warranty
obligations or responsibilities of any kind hereunder to the extent of: a) problems
caused by (i) the Customer’s failure to install the Checkmk Software (Self-Hosted) in
a suitable environment as specified by the Provider to the Customer in writing or as
set forth in the User Guide, or (ii) issues with the Internet, connectivity issues or other
technical problems within the Customer’s IT environment that affect the Customer’s
access to or use of Checkmk Cloud (SaaS), b) problems in a version of Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS) that have been remediated in a
later version, c) problems caused by the Customer’s failure to implement and operate
Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) in accordance with, as
applicable, the User Guide, these terms, the EULA, and/or any other written
instructions supplied by the Provider, d) problems resulting from the Customer’s
failure to implement (or migrate to) updates, solutions, error corrections, and
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improvements to Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS), as the
case may be, supplied by the Provider, e) problems in the use or functioning of
Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) caused by hardware or
software not provided by the Provider or approved by the Provider for use with
Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS), as the case may be, f)
problems which the Provider determines, in its reasonable discretion, are the result of
any modifications or alterations of the Checkmk Software (Self-Hosted) by anyone
other than the Provider, or g) any Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) service that is not covered by a Subscription Agreement.
6.6. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, CHECKMK
SOFTWARE (SELF-HOSTED) OR CHECKMK CLOUD (SaaS), AS APPLICABLE, AND
SUPPORT SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE PROVIDER DOES
NOT WARRANT THAT CHECKMK SOFTWARE (SELF-HOSTED) OR CHECKMK CLOUD
(SaaS), AS THE CASE MAY BE, WILL MEET THE CUSTOMER’S REQUIREMENTS OR
WILL OPERATE IN COMBINATIONS WITH OTHER HARDWARE, SOFTWARE, SYSTEMS
OR DATA NOT PROVIDED BY THE PROVIDER WHICH THE CUSTOMER MAY SELECT
FOR USE, OR THAT ALL CHECKMK SOFTWARE (SELF-HOSTED) OR CHECKMK
CLOUD (SaaS) ERRORS OR DEFICIENCIES WILL BE CORRECTED. TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE PROVIDER DOES NOT MAKE, AND
HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM
A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PROVIDER DOES NOT
WARRANT THAT THE CHECKMK SOFTWARE (SELF-HOSTED) OR CHECKMK CLOUD
(SaaS) PRODUCTS OR SERVICES ARE ERROR-FREE OR THAT THEIR USE WILL BE
UNINTERRUPTED. THE PROVIDER’S DISCLAIMER ALSO APPLIES TO ANY OF ITS
INDEPENDENT CONTRACTORS, SUPPLIERS, LICENSORS OR PROGRAM
DEVELOPERS (COLLECTIVELY, “SUPPLIERS”). THE CHECKMK SOFTWARE
(SELF-HOSTED) AND CHECKMK CLOUD (SaaS) SERVICE ARE NOT
FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR
USE AS CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS OR HIGH RISK
APPLICATIONS REQUIRING FAIL-SAFE PERFORMANCE; AND THE PROVIDER AND ITS
SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR ANY SUCH HIGH RISK ENVIRONMENT OR ACTIVITY.
WITHOUT LIMITING THE FOREGOING, THE PROVIDER IS NOT RESPONSIBLE OR
LIABLE FOR THE ACCURACY OR COMPLETENESS OF, AND MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO, THE OUTPUT
OF ANY ARTIFICIAL INTELLIGENCE (“AI”) FEATURE INCLUDED IN THE CHECKMK
SOFTWARE (SELF-HOSTED) OR CHECKMK CLOUD (SaaS) SERVICE.
7. INDEMNITIES
Section 23 of the GTC “Indemnification” does not apply to Customers of Checkmk,
Inc. and is replaced by the following clauses:
7.1. Provider Indemnity.
7.1.1. During the Subscription Period, the Provider will defend any third party action brought
against the Customer to the extent that it is based upon a claim that Checkmk
Software (Self-Hosted) and Checkmk Cloud (SaaS) (excluding any Open Source
Components), as provided by the Provider to the Customer under the Subscription
Agreement, and used within the scope of the Subscription Agreement, infringes such
third person's rights in any copyright, trademark or United States patent, and will pay
any costs, damages and reasonable attorneys' fees attributable to such claim that are
finally awarded against the Customer by a court of competent jurisdiction or the
amounts stated in a written settlement signed by the Provider, provided that the
Customer: a) promptly notifies the Provider in writing of the claim, b) grants the
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Provider sole control of the defense and settlement of the claim, and c) provides the
Provider with all assistance, information and authority reasonably required for the
defense and settlement of the claim.
7.1.2. Injunctions. If the Customer's use of Checkmk Software (Self-Hosted) or Checkmk
Cloud (SaaS) is, or in the Provider's opinion is likely to be, enjoined due to
infringement as specified in Section 7.1 above, or if a claim is brought against the
Customer due to infringement as specified in Section 7.1 above, then the Provider
may, at its sole option and expense: a) procure for the Customer the right to continue
using Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) under the terms of
the Subscription Agreement, b) replace or modify the Checkmk Software
(Self-Hosted) or Checkmk Cloud (SaaS) so that it is non-infringing, or (c) terminate
the Customer's rights and the Provider's obligations hereunder with respect to the
Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) and refund to the
Customer all Subscription Fees previously paid by the Customer with respect to the
SubscriptionPeriod in which the termination occurs.
7.1.3. Exceptions to Infringement Indemnity. Notwithstanding the terms of Section 7.1, the
Provider will have no liability for any infringement claim of any kind resulting from or
arising out of: a) modification or alteration of the Checkmk Software (Self-Hosted) or
Checkmk Cloud (SaaS) by the Customer or any third party (other than a third party
under the Provider’s control), b) the combination, operation or use of Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS) supplied hereunder with
equipment, devices or software not supplied by the Provider, c) failure of the
Customer to use an updated or modified version Checkmk Software (Self-Hosted) or
Checkmk Cloud (SaaS) made available by the Provider, to avoid infringement, d) the
Provider’s development of any changes or modifications to Checkmk Software
(Self-Hosted) or Checkmk Cloud (SaaS) created on the basis of the Customer’s
specifications; (e) the use of Checkmk Software (Self-Hosted) or Checkmk Cloud
(SaaS) that is not covered by a Subscription Agreement (i.e., Software that is used
pursuant to a Trial Version, POC Version or Free Version), or (f) use of the Software in
a manner not expressly authorized by the Subscription Agreement.
7.1.4. THIS SECTION 7.1 of the U.S. STC STATES THE CUSTOMER’S SOLE AND EXCLUSIVE
REMEDY AND THE PROVIDER’S ENTIRE LIABILITY FOR THIRD PARTY
INFRINGEMENT CLAIMS.
7.2. Customer Indemnity.
7.2.1. The Customer shall defend, indemnify and hold harmless the Provider and its
Affiliates and its/their officers, directors, employees and Suppliers (collectively, the
“Provider Indemnified Parties”) from and against all claims, demands, costs,
expenses (including reasonable attorneys’ fees), damages and liabilities of any kind
arising out of or in connection with any claim a) alleging that a use of Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS) by the Customer that is not in
accordance with the Subscription Agreement infringes or misappropriates the rights
of any third party, in particular third-party intellectual property rights; b) otherwise
resulting from the Customer’s use of Checkmk Software (Self-Hosted) or Checkmk
Cloud (SaaS) other than in accordance with these Terms and Conditions or the
Subscription Agreement or EULA (including without limitation any use in violation of
the acceptable use restrictions set forth in these Terms, the Subscription Agreement
or the EULA); c) resulting from the Customer disclosing access data or other access
information for Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS) to
unauthorized third parties in violation of these Terms and Conditions, the provisions
of the Subscription Agreement or the EULA; d) arising from data, information, or other
inputs entered by the Customer into Checkmk Software (Self-Hosted) or Checkmk
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Cloud (SaaS); e) arising from a violation of applicable law by the Customer; or f)
arising from (i) the utilization of corresponding AI models or services with Checkmk
Software (Self-Hosted) or Checkmk Cloud (SaaS), or (ii) the results or output of any
AI feature included in the Checkmk Software (Self-Hosted) or Checkmk Cloud (SaaS)
and used or relied upon by the Customer (each of clauses a) through f) a "Claim for
Non-Contractual or Abusive Use").
7.2.2. Indemnification Procedures. The Provider shall a) notify the Customer in writing
(email or text form is sufficient) without undue delay upon becoming aware of the
Claim for Non-Contractual or Abusive Use, b) grant the Customer sole control over
the defense, litigation, negotiations, and settlement of the Claim for Non-Contractual
or Abusive Use (provided that the Customer may only settle or defend such a claim if
it unconditionally releases the Provider from any and all liability), and c) provide the
Customer with all reasonable assistance in connection with the claim at the
Customer's expense.
8. LIMITATIONS OF LIABILITY
Sections 22 of the GTC “Limitations of Liability", 25.9 of the GTC “Trial-Version,
POC-Version and Free-Version” do not apply to Customers of Checkmk, Inc. and are
replaced by the following clause:
8.1. SUBJECT TO THE EXCEPTIONS SET FORTH IN THE NEXT PARAGRAPH, IN NO
EVENT WILL (A) EITHER PARTY (INCLUDING, IN THE CASE OF THE PROVIDER, ITS
SUPPLIERS) BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL,
INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING
LOSS OF DATA OR USE, COST OF COVER, LOSS OF PROFITS OR REVENUES,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND (B)
THE PROVIDER AND/OR ITS SUPPLIERS BE LIABLE IN THE AGGREGATE FOR AN
AMOUNT IN EXCESS OF THE FEES PAID BY THE CUSTOMER AND ITS AFFILIATES
HEREUNDER FOR THE SUBSCRIPTION OR SERVICE GIVING RISE TO THE LIABILITY
IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH
THE LIABILITY AROSE.
8.2. THE FOREGOING LIMITATIONS IN THE PRECEDING PARAGRAPH WILL NOT APPLY
TO (A) AMOUNTS DUE HEREUNDER, (B) THE CUSTOMER’S BREACH OF THE
LICENSE GRANT AND/OR RESTRICTIONS SET FORTH HEREIN OR IN THE EULA (IF
APPLICABLE) OR INFRINGEMENT OR MISAPPROPRIATION OF THE PROVIDER’S
INTELLECTUAL PROPERTY RIGHTS, (C) EITHER PARTY’S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND/OR (D) CLAIMS RESULTING
FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.3. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INDEPENDENT OF EACH
OTHER AND ANY LIMITED REMEDY AND WILL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS
OF LIABILITY REFLECT A DELIBERATE AND BARGAINED-FOR ALLOCATION OF RISKS
BETWEEN THE PROVIDER AND THE CUSTOMER AND CONSTITUTE THE BASIS OF
THE PARTIES’ BARGAIN, WITHOUT WHICH THE PROVIDER AND THE CUSTOMER
WOULD NOT HAVE AGREED TO THESE TERMS.
9. Force Majeure
Section 26 of the GTC “Force Majeure” does not apply to Customers of Checkmk, Inc. and
is replaced by the following clause: “Force Majeure. Except for the Customer’s obligations
to pay the Provider hereunder, neither party will be liable to the other party for any failure or
delay in performance due to causes beyond its reasonable control, including fire,
earthquake, war, riot, epidemic, act of God or governmental action.”
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10. Final Provisions
Section 28 of the GTC “Final Provisions” is supplemented as follows for Customers of
Checkmk, Inc.:
10.1. Injunctive Relief. The breach of the EULA or of Section 16 of the GTC would cause
irreparable harm to one or both parties, the extent of which would be difficult to
ascertain. Accordingly, in addition to any other remedies to which such other party
may be legally entitled, each party will have the right to obtain immediate injunctive
relief in the event of a breach of such Sections by the other party without the
requirement of posting a bond.
10.2. Assignment. The Customer may not transfer, assign or delegate any of its rights or
duties under the Subscription Agreement without the prior written consent of the
Provider, except that the Customer may transfer all, but not less than all, of its rights
under the Subscription Agreement to a successor to the Customer's business,
provided that a) the Customer gives notice to the Provider of such assignment at
least 10 days prior to the effective date of the assignment, and b) the transferee may
not be – and may not be an Affiliate of – any person that competes, then or thereafter,
with the Provider in the market for IT monitoring, reporting, planning or analytics
solutions. Any transfer, assignment or delegation in violation of the foregoing shall be
void.
10.3. Notices. All notices, demands or consents required or permitted under the
Subscription Agreement shall be in writing, including email, and will be deemed to
have been fully given and received on the earlier of actual receipt or: (a) when sent
by confirmed facsimile, (b) when sent by email (as recorded on the device from
which the sender sent the email) unless the sender receives an automated
'undeliverable' or 'failure' notice (c) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one business day (two
business days for international addresses) after deposit with an express commercial
courier, with written verification of such receipt. All communications shall be sent to
the party’s official address, or at such address as the party may specify herein or may
specify later in writing for such purposes.
10.4. Government Rights. The Software licensed under the Subscription Agreement is
“commercial computer software” as that term is defined in the Federal Acquisition
Regulations (“FAR”) at 48 C.F.R. 2.101 . The Software was developed exclusively at
private expense. If acquired by or on behalf of a civilian agency, the U.S.
Government acquires this commercial computer software and/or commercial
computer software documentation subject to the terms of the Subscription
Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211
(Technical Data) of the Federal Acquisition Regulations (“FAR”) . If acquired by or on
behalf of any agency within the Department of Defense (“DOD”), the U.S.
Government acquires this commercial computer software and/or commercial
computer software documentation subject to the terms of the Subscription
Agreement as specified in 48 C.F.R. 227.7202 of the Defense Federal Acquisition
Regulation Supplement (“DFARS”). The use of the Software and Documentation is
further restricted in accordance with the terms of the Subscription Agreement, or any
modification thereto.
10.5. Section 29.1 of the GTC “Final Provisions” does not apply to Customers of
Checkmk, Inc. and is replaced by the following clause: “The Provider reserves the
right, at its discretion, to update, change, modify, add, or remove portions of the
Subscription Agreement by notifying the Customer or by making the revised
Subscription Agreement available within Checkmk Cloud (SaaS) or on the Provider’s
website in a manner accessible to the Customer. Unless the Customer provides the
Provider with a written notice within fourteen (14) days, objecting to the revised
Subscription Agreement, such revised Agreement will become binding upon the
Customer. In any event, the Customer’s continued use of Checkmk Software
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(Self-Hosted) and Checkmk Cloud (SaaS) constitutes the Customer’s binding
acceptance of the revised Subscription Agreement.”
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