General terms and conditions

This English version is provided for convenience. Only the German version is legally binding.

Provider: BitKollegen GmbH, Drostestraße 16, 30161 Hannover, Germany, Hannover Local Court (Amtsgericht Hannover), HRB 224980, represented by its managing director Florian Apel

General Terms and Conditions

§ 1 Scope

(1) These General Terms and Conditions ("Terms") apply to all contracts for the use of Clusterward ("Contract") between BitKollegen GmbH ("Provider") and its customers ("Customer").

(2) The offer is addressed exclusively to businesses within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. Consumers cannot conclude a contract.

(3) Deviating or supplementary terms of the Customer do not become part of the Contract, even if the Provider does not expressly object to them.

(4) The following form part of the Contract, in this order: individual agreements in text form, the order with the chosen plan, these Terms, the framework data processing agreement (§ 11) and the service description on clusterward.app in the version valid when the Contract is concluded.

§ 2 Conclusion of the Contract and trial period

(1) The presentation of Clusterward on clusterward.app is not a binding offer.

(2) After a demo, the Provider may activate a workspace for the Customer for a free trial period of 30 days with up to 2 clusters. The trial period ends automatically; it incurs no costs and no obligation to order. These Terms apply to the trial period accordingly, except for the obligation to pay.

(3) The Contract is concluded when the Customer orders a plan in text form and the Provider confirms the order in text form or activates the workspace for the ordered plan.

(4) If the Customer does not order by the end of the trial period, the Provider sets the workspace to "read-only" and deletes it 30 days after the end of the trial period. The resources in the Customer's Scaleway project remain untouched.

§ 3 Services of the Provider

(1) The Provider makes Clusterward available to the Customer as software-as-a-service over the internet: a workspace with which the Customer sets up and operates Kubernetes clusters, applications, databases, object storage, domains, certificates, secrets and customer pipelines in its own Scaleway projects. The service description on clusterward.app describes the range of functions.

(2) All functions are available in every plan. The plans differ in the number of clusters a workspace manages and in the level of support (§ 5). Users, applications and tenants are not limited.

(3) The infrastructure and services that the Customer uses in its own name are not part of the Provider's services, in particular its account and projects with Scaleway SAS and connected services such as DNS zones at Cloudflare or Scaleway, Git repositories and GitHub Actions. The Customer's contracts with the respective providers apply to these; the Customer bears their costs directly. Clusterward accesses them with the credentials the Customer stores and acts according to the actions that the Customer's users trigger.

(4) The Provider develops Clusterward further. It may change or replace functions as long as the contractual use is not impaired more than insignificantly. It announces material changes in text form or in the changelog on clusterward.app.

(5) The Provider operates Clusterward in data centres of Scaleway SAS in the European Union.

§ 4 Rights of use

(1) For the term of the Contract, the Provider grants the Customer the non-exclusive, non-transferable right to use Clusterward for its own purposes and for the purposes of its customers. The Customer receives no rights to the software itself, to the source code or to modify it.

(2) The Customer may allow its employees and agents and – for example with tenant pipelines – its own customers to use Clusterward within the scope of its services. Renting Clusterward out to third parties as a stand-alone product requires the Provider's consent in text form.

(3) All data that the Customer stores in Clusterward or that is created in its Scaleway projects remains the Customer's data.

§ 5 Availability, maintenance and support

(1) The Provider makes Clusterward available in all plans with an availability of 99.5% as a monthly average, measured by the reachability of the workspace. Announced maintenance windows, disruptions outside the Provider's sphere of influence, for example at Scaleway or on the internet, and disruptions for which the Customer is responsible do not count as downtime.

(2) The operation of the Customer's applications does not depend on the availability of Clusterward: clusters, applications and databases continue to run in the Customer's Scaleway projects even if Clusterward is temporarily unreachable.

(3) The Provider announces maintenance work that noticeably restricts use with reasonable notice and schedules it, where possible, at times of low use.

(4) The Provider provides support by email and through its support system in German and English during service hours: Monday to Friday from 9 a.m. to 5 p.m., excluding public holidays in Lower Saxony. The response time is the time until the first qualified answer, not until the solution; it runs only during service hours.

(5) The plans provide: in the Starter plan, support by email without a committed response time, the Provider usually answering on the same working day; in the Team plan, prioritised support with a response time of 8 service hours; in the Platform plan, a response time of 4 service hours for critical disruptions – the workspace is unreachable or deployments are not possible – and of 8 service hours in all other cases.

§ 6 Obligations of the Customer

(1) The Customer keeps the credentials of its users secret, grants rights according to the needs of the task and informs the Provider without undue delay if it suspects misuse. Sign-in with a second factor is mandatory in Clusterward.

(2) The Customer ensures that the credentials it stores for Scaleway and connected services have the required rights and no more rights than necessary.

(3) The Customer is responsible for the applications, content and data that it operates with Clusterward, and for their operation being compatible with applicable law and the terms of Scaleway and other providers.

(4) The Customer checks actions with far-reaching consequences, for example deleting clusters, databases or volumes, before confirming them. Clusterward backs up databases and buckets before deleting them during offboarding and offers nightly bucket backups, database backups and snapshots, which the Customer sets up and whose retention it determines; beyond that, the Customer is responsible for backing up its data according to its importance.

(5) The Customer refrains from actions that impair the security or operation of Clusterward or of other customers, in particular attacks, circumventing access restrictions and automated requests beyond the intended extent.

§ 7 Prices and payment

(1) The prices of the chosen plan according to the price list on clusterward.app at the time the Contract is concluded apply. All prices are net plus statutory VAT. There is no set-up fee.

(2) Scaleway invoices the costs of the resources in the Customer's Scaleway projects directly to the Customer. The Provider does not add a surcharge.

(3) The fee is due monthly in advance. It is charged at the start of each billing month to the payment method that the Customer stores when ordering: credit card, Apple Pay, Google Pay or PayPal. The payment is processed by the payment service provider Mollie B.V., Amsterdam. The Customer keeps its payment method up to date. The Customer receives the invoice by email. The Provider does not offer other payment methods, in particular bank transfer and direct debit.

(4) A change to a higher plan applies immediately and is charged pro rata for the current month. A change to a lower plan applies from the next billing month.

(5) If a workspace reaches the number of clusters of its plan, the Customer cannot create or register further clusters until it removes a cluster or changes the plan. Existing clusters and applications are not affected.

(6) The Provider may change the prices with six weeks' notice to the start of a billing month in text form. In this case the Customer may terminate the Contract as of the date the change takes effect. If the Customer does not terminate, the new prices apply; the Provider points this out in the announcement.

§ 8 Payment default

(1) If a charge fails, the Provider informs the Customer by email and attempts the charge again. If the amount is still outstanding 14 days after this information, the Provider may set the workspace to "read-only" until the outstanding amounts have been paid.

(2) Even then, the Customer's applications, databases and scheduled jobs continue to run. The Customer can sign in, view all pages and export its data; changes are blocked until the amount is settled. The Provider does not delete any data during this time.

(3) Further rights of the Provider, in particular to termination for good cause and to default interest, remain unaffected.

§ 9 Term and termination

(1) The Contract runs for an indefinite period. Either party may terminate it with effect from the end of the current billing month. There is no minimum term.

(2) The right to terminate for good cause remains unaffected. Good cause exists for the Provider in particular if the Customer is in default with the payment of two monthly fees or seriously breaches § 6.

(3) Terminations must be made in text form.

§ 10 End of the Contract

(1) Before the end of the Contract, the Customer can export the configuration of its workspace as a file at any time. After the end of the Contract, the Provider sets the workspace to "read-only"; sign-in and export remain possible.

(2) The Provider deletes the workspace with its database, its data key and its backup storage no later than 30 days after the end of the Contract, unless there is a statutory obligation to retain them.

(3) Clusters, applications, databases, buckets and all other resources in the Customer's Scaleway projects remain untouched. The Customer can continue to operate them without Clusterward; the Provider only removes its control.

(4) This includes the backup bucket of the nightly bucket backups in the Customer's Scaleway project. After the end of the Contract, the Provider deletes the backup key with which Clusterward writes the backups. The backed-up copies expire with the retention the Customer has chosen; in "compliance" mode nobody can delete them earlier, not even the Provider.

§ 11 Data protection

(1) Insofar as the Provider processes personal data on behalf of the Customer, the Provider's framework data processing agreement with service annex A (Clusterward) applies in the version published on clusterward.app. It becomes part of the Contract when the Contract is concluded.

(2) Otherwise, the Provider processes personal data in accordance with its privacy policy.

§ 12 Confidentiality

(1) The parties treat all confidential information of the other party that becomes known to them in connection with the Contract as confidential and use it only for the purposes of the Contract. This also applies after the end of the Contract.

(2) Information that is publicly known, that was already known to a party or that it has lawfully received from third parties is not confidential.

(3) The Provider may name the Customer as a reference if the Customer has agreed.

§ 13 Defects

(1) The Provider warrants that Clusterward has the characteristics described in the service description. An insignificant reduction in suitability is disregarded.

(2) The Customer reports defects without undue delay with a comprehensible description in text form. The Provider remedies defects within a reasonable period, also by means of a workaround if it impairs use no more than insignificantly.

(3) Strict liability for defects that already existed when the Contract was concluded (§ 536a para. 1 alt. 1 BGB) is excluded.

§ 14 Liability

(1) The Provider is liable without limitation for intent and gross negligence, for injury to life, body or health, under the German Product Liability Act and to the extent of any guarantee it has given.

(2) In the case of slight negligence, the Provider is only liable for the breach of an essential contractual obligation, the fulfilment of which makes the proper performance of the Contract possible in the first place and on whose fulfilment the Customer regularly relies. Liability is then limited to the damage typical for the contract and foreseeable, per calendar year at most to the fees the Customer paid in the calendar year in which the damage occurred, but at least to EUR 10,000.

(3) For the loss of data, the Provider is only liable in the amount of the effort that would have been required for recovery if the Customer had backed up its data regularly and in a manner appropriate to the risk.

(4) The Provider is not liable for services and disruptions of Scaleway and other services that the Customer uses in its own name (§ 3 para. 3), nor for the consequences of actions that the Customer's users trigger in Clusterward, insofar as Clusterward executes them as described.

(5) The above limitations also apply to the personal liability of the Provider's employees, representatives and vicarious agents.

§ 15 Changes to these Terms

(1) The Provider may change these Terms with effect for the future insofar as this is necessary for an objective reason, for example because of new functions, a changed legal situation or case law, and the Customer is not unreasonably disadvantaged by it.

(2) The Provider announces changes at least six weeks before they take effect in text form. If the Customer does not object by the time they take effect, the changes are deemed accepted; the Provider points this out in the announcement. If the Customer objects, either party may terminate the Contract as of the date the changes take effect.

§ 16 Final provisions

(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.

(2) The exclusive place of jurisdiction for all disputes arising from or in connection with the Contract is Hannover, insofar as the Customer is a merchant, a legal entity under public law or a special fund under public law.

(3) Amendments and additions to the Contract must be made in text form.

(4) Should a provision be invalid, the rest of the Contract remains valid. The statutory provision takes the place of the invalid provision.