1. Preamble
Customer (entrepreneur in the sense of § 14 BGB) wants to operate Kubernetes server clusters and application programs on his own information technology infrastructure. He procures on his own responsibility, in his own name and for his own account
- an own (for example, purchased or leased) information technology infrastructure based on cloud technology, consisting of servers, network and storage,
- application programs (apps) that he runs in such a cluster.
Syself is an information technology infrastructure provider that provides services to cloud infrastructure owners (Customers).
Syself shall provide platform services, technical support and consulting services to Customer for his project so that Customer can operate and manage his clusters and application programs by himself.
Syself itself does not provide hosting to Customer, but Customer either procures these services directly from the relevant third-party providers or develops them himself.
2. Subject of the agreement
Subject matter of these Terms of Service are the services that Syself provides for Customer in the course of the "Autopilot" service offering.
The object, scope and other features of the services as well as the specifications of Customer to be observed by Syself shall result from the respective orders placed by Customer. The provisions of these Terms of Service shall apply insofar as not otherwise expressly stipulated in an order placed.
Customer places the order in general electronically via Syself platform.
An order received from Customer shall be accepted by Syself in text form and without undue delay, but no later than within 3 working days, otherwise Customer shall no longer be bound to its order.
The order comes into effect with the acceptance of the order by Syself. Changes to a placed order, in particular additions or extensions to Syself's services, must be agreed in text form (e.g. e-mail).
In the event of conflicting provisions between the Terms of Service and Customer's purchase orders, the provisions contained in the purchase orders shall take precedence over the Terms of Service. In the event of any inconsistency between the Annexes and these Terms of Service, the provisions contained in the Annexes shall prevail.
3. Services
Access to the platform
Syself operates its proprietary internet platform on which Customer can order and manage certain IT services. Syself grants Customer access to the platform by way of a lease for the duration of the term of this agreement.
Management cluster
The platform includes, in particular, a management cluster with which Customer can create Kubernetes clusters from the existing cloud infrastructure and administer them himself. This enables Customer, for example, to perform updates and scale up or down the number of nodes in the cluster (self-service administration).
Customer may commission Syself to set up the clusters on Customer's server infrastructure.
Customer must grant Syself access to its cloud infrastructure for this purpose (e.g., in the form of passwords or tokens).
Other services
Customer may also order application programs and other services via the platform, but outside the management cluster. Syself can then provide to Customer against separate invoicing in particular the following services:
- configuration, installation and operation of clusters and application programs,
- supervision (monitoring) and maintenance of the clusters and application programs,
- creation of backups,
- employee trainings.
Updates
Customer can order updates via the platform. Syself checks them according to the state of the art to ensure that they are functional.
Customer shall operate his clusters and its application programs independently and shall keep them up-to-date independently by installing updates. Syself is not obligated to ensure the functionality of the clusters and application programs during operation.
Note on the scope of this agreement
In his cluster, Customer will usually install and operate application programs which he has not received from Syself. In this case, Customer must manage such application programs completely by himself without support from Syself and also update them by himself. Such application programs have no relation to Syself and are not subject of this agreement.
4. Customer’s obligations to cooperate
Customer has the following obligations to cooperate:
- Customer registers on the platform of Syself.
- Customer performs the installation of the updates.
- Customer must keep its access credentials to the platform (e.g. passwords) secret and store them securely.
Customer is responsible for the technical security of his IT infrastructure and is strongly advised to make regular backups of all data. Customer is aware that it can render his cluster inoperable and cause irreparable data loss by incorrect configuration or deletion of essential components.
Customer undertakes not to use the provided server clusters for any illegal activities that violate any law, official requirements or the rights of third parties. Customer shall neither use the platform for mining crypto assets such as Bitcoin, nor for any (even legal) hacking activities. If Customer violates these obligations, Syself shall be entitled to terminate the agreement without notice with immediate effect for good cause.
5. Availability
Availability of Syself platform
Syself shall ensure that the platform is available to Customer with an availability of 99.5% on an annual average. Syself may, with Customer's consent, interrupt the provision of services to perform maintenance work for a period determined in advance. These periods shall not be taken into account in the calculation of the availability rate. Customer shall only refuse consent if there is a justified interest for this.
Customer is aware that restrictions or impairments of the services provided may arise that are beyond the control of Syself. This includes, for example, actions of third parties not acting on behalf of Syself, technical conditions of the Internet that cannot be influenced by Syself as well as official requirements and force majeure.
The services of Syself's platform may also be dependent on the hardware and software and technical infrastructure used by Customer. Insofar as such circumstances have any effect on the availability or functionality of the service provided by Syself, the services of Syself shall nevertheless be deemed to have been provided in accordance with the agreement.
Availability of Customer's clusters
The availability of Syself's platform is technically completely independent from the availability of Customer's clusters. The latter depends exclusively on Customer's cloud infrastructure, which is not the subject of this agreement.
If Customer's cloud infrastructure is inaccessible or non-functional, Customer shall settle this exclusively in the relationship with its infrastructure provider.
6. Rights of use
Platform
Syself grants Customer the simple non-exclusive right to use the Internet platform, in particular its management cluster. This right of use is effective worldwide, is limited in time for the duration of this agreement, is not transferable to third parties and cannot be sub-licensed.
The platform remains the property and on the servers of Syself. The source code remains exclusively with Syself.
Customer is not entitled to make the platform available to third parties for use against payment or free of charge.
Work results
Syself grants Customer the respective non-exclusive, non-transferable, non-sublicensable right of use for all known types of use, limited in time to the duration of the agreement, usable worldwide and unrestricted in content, to all work results arising from or in connection with the agreed services ("Work Results" such as configurations, customizing, parameterization, or the combining of servers into a cluster), in particular with regard to all software, concepts, studies, documentation, program descriptions, user manuals and other records.
Open-source components
The updates and application programs provided via the platform are generally open-source software.
Customer must acquire the rights of use from the respective rights holders by concluding license agreements with them under the terms of the respective licenses. In this case, the use of the application software shall be governed exclusively by the respective licenses. Customer can use the following link to find and download the source code and license of the open-source software Kubernetes. The Kubernetes clusters consist of numerous open-source components which Syself provides to Customer free of charge.
7. Remuneration: Priority of the individual purchase order
The remuneration is regulated individually in the respective order. The remuneration is usually due at the beginning of the month for each current month. Otherwise, the remuneration is based on section “Remuneration: Key principles” and on Syself's price list valid at the time of the conclusion of the agreement, which can be viewed at syself.com and which is an integral part of this agreement.
8. Remuneration: Key principles
Price calculation
Customer pays to Syself for the respectively ordered service
- a fixed montly basic price
- plus a share of the amount which Customer has paid to his cloud provider (e.g.: Hetzner) for the use of the cloud infrastructure, such as servers combined in his clusters, in the previous billing month. Thereby an increase of the invoice amount of the provider leads to an increase, just as a decrease of the invoice amount of the provider leads to a corresponding decrease of the payment claim of Syself.
Only the costs at the cloud provider that are relevant for the Syself platform will be included in the calculation, i.e. load balancers, servers and server-related additional components, such as IPs and SSDs.
All amounts are subject to the statutory value added tax.
At the beginning of each month Customer pays a down payment for the current month. This down payment is calculated as specified in this section, based on the invoiced amount of the last invoice of Customer’s cloud provider that Customer provided to Syself.
After Customer has notified Syself of the invoiced amount for a given month, Syself will adjust the down payment for the coming months accordingly and will offset the difference between the down payment already paid and the amount actually owed. The difference will be applied to the next invoice, so that the amount of the invoice will increase or decrease accordingly, depending on whether the down payment was too high or too low.
If an invoice shows a negative amount, the amount will be credited accordingly to Customer and set off against the next invoice. If the contractual relationship ends and Customer has a positive positive balance, Syself will pay Customer the credit balance by bank transfer.
Customer's obligation to cooperate
Customer will inform Syself about the relevant invoiced amount of his cloud provider each time after receipt of the invoice, at the latest by the 15th of the following month.
On first demand Customer will provide Syself with a copy of the provider's invoice.
Syself is entitled to verify the cloud provider's invoices. Customer shall allow Syself to inspect the respective invoice of the cloud provider online by means of screen sharing.
If Customer fails to inform Syself about the invoiced amount in due time, Syself reserves the right to deny Customer access to the platform after a period of 4 weeks until Customer has fulfilled his contractual obligations. During this period Customer owes the invoice amount of the previous month.
Price adjustments
Syself may, at its reasonable discretion, adjust the fees to be paid to the development of the costs that are decisive for the calculation of the fees. A price increase shall be possible in particular if, for example, the costs for the procurement and use of hardware and software, energy, the provision or use of communication networks, personnel costs or space costs increase or other changes in the economic or legal framework conditions lead to a changed cost situation.
Syself shall inform Customer in text form no later than six weeks before the changes come into effect. If Customer objects to a price increase at least in text form within 30 days after receipt of a notification of a price increase, Syself may either continue the agreement at unchanged conditions or terminate the agreement with a notice period of one month.
9. Right to change
Syself may change the IT environment and software used to provide its services, provided that the functionality or security function of its services is not affected by the change. If changes are made that alter the way personal data is processed, Customer may terminate the agreement within 30 days of receiving notice of the change. Other changes to the service description shall only come into effect by amending the agreement by mutual understanding.
10. Liability
Limitation of liability
Claims for damages against Syself shall be excluded irrespective of the legal grounds, unless Syself, its legal representatives or vicarious agents have acted intentionally or with gross negligence.
Syself shall only be liable for slight negligence if one of the material agreementual obligations has been breached by Syself, its legal representatives or executive employees or vicarious agents. Material contractual obligations are those obligations which form the basis of the contract which were decisive for the conclusion of the contract and on the fulfillment of which Customer may rely.
Syself shall be liable without limitation for damage caused intentionally or negligently by Syself, its legal representatives or vicarious agents resulting from injury to life, body or health.
Liability under the Product Liability Act remains unaffected.
Syself shall not be liable for the loss of data insofar as the damage is due to Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
The strict liability of the supplier for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded.
Third party software
Application programs and their respective updates are not created by Syself, but exclusively by third-party suppliers. Customer concludes a separate contract with the respective developer regarding their use and shall exclusively contact the manufacturer in case of any warranty issues.
Syself shall only be liable for the fact that it has tested the application programs and their respective updates in accordance with the state of the art and with due diligence to ensure that they are functional.
Should an error in the software nevertheless be discovered later, Syself may update to the a new and error-free version. Syself shall inform Customer of this without delay.
Open-source software
In the case of open-source software, Customer shall inform himself about known bugs and other errors of the software by retrieving them from the respective web address of the open-source project or the manufacturer of the software.
Syself, its vicarious agents and legal representatives shall be liable in the case of material defects for direct damage caused to Customer because a defect in the software was fraudulently concealed from Customer, and for consequential damage caused by defects due to intentional or grossly negligent conduct on the part of Syself, its vicarious agents or its legal representatives.
Any further warranty for material defects is excluded. Error corrections shall only be carried out on the basis of a separately concluded support contract against payment.
Defects in title
Syself is not aware of any defects of title in the software. In the event of defects of title, Syself, its vicarious agents and its legal representatives shall only be liable for damages incurred by Customer because a defect of title in the software was fraudulently concealed from Customer. Any further warranty for defects of title is excluded.
Syself shall not be liable for any infringement of third party rights by Customer if and to the extent that such infringement results from a transgression of the rights of use granted under this agreement. In this case, Customer shall indemnify Syself upon first request against all claims of third parties.
Other
Customer shall only be entitled to remedies due to defects within the scope of a quality and/or durability guarantee if Syself has expressly given such a guarantee with regard to the services provided in the individual case.
If Customer is an entrepreneur, it is a prerequisite for any warranty rights that he duly fulfills all inspection and complaint obligations owed under § 377 HGB.
11. Privacy and data protection
Technical and organizational data protection measures
Customer is solely responsible for taking appropriate technical and organizational measures to protect his infrastructure, software and data.
In particular, Customer must keep his software up to date by means of updates and perform regular data backups.
Customer is fully aware that all software and data are irretrievably lost if he deletes them by himself. Customer must therefore exercise the necessary due diligence in particular when operating the management cluster.
Customer shall prevent unauthorized access by third parties to the protected areas of the software by taking appropriate precautions.
Customer must inspect his data and information for viruses or other harmful components before entering them and use state-of-the-art virus protection programs for this purpose.
Protection of personal data
Customer shall comply with the respective regulations on the protection of personal data, in particular the General Data Protection Regulation and the respective data protection laws of the Federal Government and the Federal States.
If and to the extent that Customer processes any personal data, or has it processed on his behalf, on IT systems technically managed by Syself, Customer shall be obligated pursuant to Art. 28 DSGVO to conclude a separate processing agreement with Syself.
Data processing rights
Customer grants Syself the right, for the purposes of executing this agreement, to process Customer's application programs stored in the cluster in an automated manner (without manual activity) via the management cluster within the scope specified in the order. Syself shall only process data manually after Customer has expressly requested Syself to do so in text form.
Customer grants Syself the right to reproduce the data to be stored by Syself for Customer for the purposes of the performance of the agreement, insofar as this is necessary for the provision of the services owed under this agreement. Syself shall be entitled to keep the data in a backup system or separate backup computer center. In order to eliminate disruptions, Syself shall also be entitled to make changes to the structure of the data or the data format.
Unless otherwise agreed, personal data in Customer’s data will be used only for the provision of the Autopilot Service and other services.
12. Confidentiality
The parties undertake to maintain strict secrecy about all confidential processes, in particular business or trade secrets, which come to their knowledge in the course of the preparation, execution and fulfillment of this agreement, and to neither disclose nor exploit them in any other way. This shall apply to any unauthorized third parties, i.e. also to unauthorized employees of both Syself and Customer, unless the disclosure of information is necessary for the proper performance of the contractual obligations. In cases of doubt, each party shall obtain consent prior to such disclosure.
The parties undertake to agree with all employees and sub-contractors used by them in connection with the preparation, execution and performance of this agreement on a provision identical in content to the preceding paragraph.
13. Term of the agreement, termination
This agreement is concluded for an indefinite period. The contractual relationship shall commence with the order confirmation by Syself and may be terminated by either party at any time in writing with 30 days' notice to the end of a month in text form.
The right of each contracting party to terminate this agreement without notice for good cause shall remain unaffected. In particular, Syself shall be entitled to terminate without notice if Customer fails to make due payments despite a reminder and a grace period or violates the provisions of this agreement. Termination without notice requires that the other party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.
14. Customer's obligations to cooperate at termination of contract
Until the end of the contractual relationship Customer has to delete his clusters, application programs and the volumes with his data or to make a backup copy and to transfer it to another IT infrastructure of his choice via a data network.
Customer has to grant Syself access to his infrastructure for the mentioned purposes, e.g. via passwords. Syself accesses the infrastructure of Customer only in order to carry out the termination of the contract or to verify that Customer has carried out the activities mentioned in this section.
Syself supports Customer at his request and against separate individually agreed invoice in the transfer of his clusters, data and application programs to his new IT infrastructure. Customer has to give notice of this request at least three months before termination of the contractual relationship. Customer's data includes, in particular, the data provided by himself, the data generated in the cloud and meta data such as statistics, accesses, interface information of the usage. The data format used on the "Autopilot" cluster shall apply. The data transfer is done online and in no case by means of physical data storage media.
Customer confirms to Syself that the transfer has taken place according to the order. Then Syself deletes the data of Customer in its cluster and in possible back-up storages, as far as permittable by applicable law.
15. Special regulations on the ordering of services
The specifications of the services are provided in the order, which in particular specifies the subject and scope of the services, the places of operation and the start and end dates of the ordered services. Customer shall in generally place its orders by use of Syself's platform.
Syself shall be independent and free in rendering its services and shall not be subject to any instructions of Customer beyond the order. Syself may use suitable sub-contractors.
Syself shall inform Customer immediately in text form if the proper execution of the services is at risk with regard to technical or temporal aspects.
16. Special regulations on the ordering of work results
The description of the work results shall be made in the order. Customer may specify in the respective order that work results are to be rendered in partial performances.
Work results are usually e.g. configurations, parameterization, or the combination of servers into one or more clusters, or the installation of application software in the cluster. Customer shall generally place his orders in this regard via Syself's platform.
If Customer wishes to make changes to the ordered work results (change request), he shall notify Syself thereof in text form. Syself shall be entitled to invoice the resulting additional expenditure and to adjust schedules accordingly.
Syself shall make the manufactured work available for acceptance. Partial acceptance is possible. Customer declares acceptance in text form or implicitly, for example by putting the work result into operation. A work shall also be deemed to have been accepted if Syself has set Customer a deadline of two weeks for acceptance after completion of the work and Customer has not refused acceptance within this period, stating at least one defect.
Customer is not allowed to refuse acceptance due to insignificant deviations.
Should defects occur in the work handed over, Customer shall notify Syself thereof without delay. Syself shall remedy the defects within the scope of its statutory warranty obligation.
17. Choice of law and place of jurisdiction
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction is Frankfurt.
18. Mediation, arbitration
The parties agree that in the event of any disputes arising out of or in connection with this agreement, any extensions or supplements thereto, which they are unable to settle among themselves, they shall call upon the arbitration board of the German Society for Law and Information Technology e.V. ("DGRI e.V."), currently Prof. Dr. Axel Metzger, Humboldt University of Berlin, Unter den Linden 6, D 10099 Berlin, Germany, Tel.: 0049-30-2093-3382, e-Mail: [email protected], https://www.dgri.de/ or the respective address of the arbitration body given on the website of DGRI e.V. at https://www.dgri.de/, in order to settle the dispute in whole or in part, provisionally or finally, in accordance with its rules of arbitration in the version valid at the time of the initiation of the arbitration proceedings.
The statute of limitations for all claims arising from the subject matter of the arbitration proceedings shall be suspended from the date of the request for arbitration until the end of the arbitration proceedings. § Section 203 of the German Civil Code shall apply accordingly.
The parties clarify that the prior initiation of arbitration proceedings is not a prerequisite for litigation, regardless of whether the proceedings are on the merits or for interim relief.
19. Final provisions
Syself reserves the right to make changes to these Terms and Conditions by giving Customer prior notification via email.
If a party uses its own GTC as an entrepreneur, then terms and conditions that deviate from or contradict this agreement shall not apply. The provisions of this agreement shall take precedence over any GTC.
Should individual provisions of this agreement be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any omissions in the agreement.
The contracting parties have concluded this agreement in a German and English version. The German version alone shall be authoritative for the legal effects between the parties.