General Terms and Conditions

Status: Vienna, 02.05.2023

1. The parties and Scope

1.1. Glasskube is a company that develops an Application Delivery Platform that automates the installation and Day 2 Operation of Open Source Solution (“Managed Solutions”) and offers other related services for its customers in accordance with the respective service description or offer/individual contract.

1.2. It is noted that the customer is an business within the meaning of § 1 of the Austrian Commercial Code (“Unternehmer” UGB) and that there is no founding transaction within the meaning of § 1 (3) of the Consumer Protection Act (KSchG).

1.3. Glasskube may provide its services on the infrastructure of a Server Provider (“Server Provider”). To the extent that the Server Provider offers terms or SLAs that provide for a lesser provision than that set forth in this Agreement, the Server Provider's terms shall apply.

2. Validity

2.1. These General Terms and Conditions (“GTC”) apply to all deliveries and services of Glasskube OS GmbH, Wallensteinplatz 3-4/2/13, 1200 Vienna, FN602195g (hereinafter “Glasskube” or “we”) and its customers (hereinafter “customers” or “you”) in the area of software (Managed Solutions, development services, hosting, service, related services and deliverables).

2.2. The version valid at the time of the conclusion of the contract applies. In the case of an ongoing/existing business relationship, these GTC shall also be part of the contract even if they are not expressly mentioned in an individual contract or offer.

2.3. The following contractual components apply to the contractual relationship between Glasskube and the customer in the order stated:
           a. Service description/ terms of the server provider, if applicable according to section 1.3;
           b. The offer/individual contract on which the respective contract is based, including the service description;
           c. Any business, contractual or licensing conditions of third parties, for the respective part of the performance, if these are expressly referred to;
           d. These GTC with its annexes.

2.4. General terms and conditions of third parties only apply in the event of express written confirmation by Glasskube. This also applies if the customer bases the conclusion of the contract on his own general terms and conditions, even if Glasskube does not object to these upon their knowledge.

2.5. Verbal agreements, reservations, amendments, or supplements to these GTC must be in writing in order to be valid; this also applies to any waiver of the written form requirement.

2.6. The customer will be notified of any changes to these GTC and they will be deemed to have been agreed unless you object to them within 14 days.

3. Conclusion of contract

3.1. The basis for the conclusion of the contract is the inquiry of the customer on the basis of the current price list and confirmation by Glasskube by Order Confirmation or Offer Acceptance, the respective offer from Glasskube, in which the scope of services and the remuneration are specified, or a contract concluded online. Glasskube’s offers are subject to change. Only after express acceptance by Glasskube the contract is concluded.

3.2. The acceptance must be made in writing (e.g. by order confirmation), unless Glasskube clearly indicates (e.g. by acting on the basis of the order) that it accepts the order.

4. Subject matter of the contract, scope of services

4.1. The scope of the services to be provided is defined in the offer, the customer’s order or the service description or the individual contract. Subsequent changes to the content of the service must be made in writing, whereby e-Mail is sufficient.

4.2. The services include, in general, the installation/setup, maintenance and operation of the respective components/Open Source Solutions as well as backups. The service operation may be executed on the customer’s server or cluster, in which case a separate agreement has to be concluded.

4.3. Support for the components/Open Source Solutions themselves, especially regarding their functionality or configuration is not part of the scope. The choice of component/tool and responsibility for its suitability and use lies solely with the customer.

4.4. The applicability of the SLA, as defined in the service description, depends on the specific product the customer chooses.

4.5. Glasskube is entitled to partial deliveries and services at any time.

4.6. Developments that are carried out individually for customers (e.g. new interfaces) will be invoiced and agreed separately.

4.7. All additional services will be invoiced separately to the customer on a time and material basis at the current hourly rate at the time of service provision.

5. Service, Maintenance & Updates

5.1. Glasskube reserves the right, especially regarding adequate IT-security, to carry out updates at its own discretion in order to guarantee adequate IT security.

5.2. Glasskube can decide on the relevant version of the respective software or component and update/upgrade them at their discretion. Glasskube informs its customers in good time about planned update work and possible downtime. Should the customer object to the update/upgrade, the customer shall bear all negative consequences thereof, such as increased security risks and extra costs for future version updates/upgrades and acknowledges that the agreed SLAs are no longer applicable.

5.3. Details of service and maintenance can be found in the service description.

5.4. In the case of individual developments for customers, service, further development and updates are charged separately according to the current hourly rates.

6. Intellectual property, scope of use

6.1. General

6.2. All copyrights and rights of use shall remain with Glasskube or the respective right holder in accordance with the latter's licence conditions, unless otherwise agreed in writing.

6.3. Use by third parties or transfer to third parties beyond the content of the contract is not permitted.

6.4. All services provided by Glasskube, including concepts, ideas, prototypes, and design originals as well as including individual parts thereof, remain the property of Glasskube and can be reclaimed by Glasskube at any time - in particular upon termination of the contractual relationship, for free.

6.5. Changes to Glasskube's services, such as their further development by the customer or by third parties working for the customer, for the duration of this contract are only permitted with Glasskube’s express written consent. If the ability to effect changes is within the scope of the respective license provided, these components will not be part of Glasskube’s service.

6.6. For the use of Glasskube's services that goes beyond the originally agreed purpose and scope of use, Glasskube's express written consent is required - irrespective of whether this service is protected by copyright. Glasskube and the rights holder are entitled to a separate appropriate remuneration for this.

6.7. Glasskube's express written consent is required after the end of the contract for the use of advertising material or presentation media for which Glasskube has developed conceptual or design templates, which will be charged separately.

6.8. In the event of breaches of this point 6, the customer shall fully indemnify and hold Glasskube harmless.

6.9. Managed Solutions
With the defined contract start, Glasskube grants the customer a non-exclusive, non-transferable, non-sublicensable right to use the software on Glasskube's platform for own internal purposes for the duration of the corresponding contract.

6.10. Individual developments for customers
After full payment, Glasskube grants the customer a non-exclusive, non-transferable, non-sublicensable right to use the individual developments for own internal use for the duration of the underlying contract (e.g. Managed Solutions) unless otherwise agreed in writing.

6.11. Third party components
If third-party components are part of the software (e.g. Open Source components or commercial software), the respective licence conditions apply to these components. The third-party components used (e.g. the Kubernetes Operator) are listed separately (see Licenses).

7. Branding

7.1. Glasskube is entitled to brand the software and refer to Glasskube and, if applicable, to the rights holder on all system, software and hardware components and in all advertising measures, without the customer being entitled to a claim for payment for this.

7.2. The customer is obliged to retain any marks (trademark, copyright or other notices) and to preserve the right to name Glasskube.

8. Service provision and cooperation obligations of the customer

8.1. The customer is aware that Glasskube can only provide its services if it immediately provides Glasskube with all information and documents that are necessary for the provision of the respective service. The customer further declares that he will inform Glasskube of all circumstances and events that are necessary for the performance of the services, even if these circumstances only become known during the provision of the contractual services.

8.2. All services provided by Glasskube (e.g. preliminary drafts, sketches, workflow descriptions, specifications) must be checked by the customer and approved within three days, after which they are deemed to have been approved by the customer.

8.3. The customer shall bear the costs arising from the fact that work has to be repeated, changed, or is delayed as a result of incorrect, incomplete or subsequently changed information from Glasskube.

8.4. Furthermore, the customer is obliged to check the documents provided by him for the provision of the services (plans, briefing documents, interface descriptions, database diagrams, logos, photos, texts, etc.) for any existing copyrights, trademark rights or other rights of third parties.

8.5. Glasskube is not liable for any infringement of such rights. If a claim is made against Glasskube for such an infringement of rights, the customer shall indemnify and hold Glasskube harmless; the customer shall compensate Glasskube for all disadvantages it suffers as a result of a claim being made against it by a third party.

9. Third-party services

9.1. Glasskube is entitled, at its own discretion, to perform the service itself, to use third parties to perform services that are the subject matter of the contract and/or to substitute such services.

9.2. The commissioning of third parties shall be carried out either for the customer or in the name of the customer, but in any case, at the customer’s expense.

10. Business secrets, confidentiality

10.1. The customer and Glasskube shall be obligated to treat all documents and information that are expressly designated as confidential, are obviously not intended for third parties or contain business or trade secrets (including prices and service descriptions as well as technical data and specifications) of the other party confidential. In case of doubt, the non-existence of the confidentiality requirement shall be confirmed in writing by the respective other party. Customer and Glasskube shall also impose these obligations on their employees and any third parties engaged. Reverse engineering of information by one party (in particular within the meaning of § 26d (1) (2) UWG), in which the confidential information is obtained, for example, by examining, deconstructing or testing an object, is expressly prohibited.

10.2. Subject to the written revocation of the customer, which is possible at any time, Glasskube is free to make publications about the services, provided that only the customer's name and the content of the services provided (excluding economic or commercial data) are mentioned. Glasskube is entitled to refer to the existing business relationship with the customer on its own advertising media and in particular on its internet website with the name and company logo.

11. Deadlines

11.1. Agreements on deadlines and dates must be recorded or confirmed in writing. The agreed delivery dates and deadlines are only indicative unless they have been expressly designated as binding in writing. The delivery period calculated for the delivery shall commence at the earliest upon receipt of the details finally fixed in all commercial and technical respects and after provision of the services required by the customer for this purpose (e.g. provision of documents or information). Subsequent requests for changes and additions shall extend the delivery time appropriately.

11.2. After exceeding a non-binding delivery date or a non-binding delivery period, the customer can request Glasskube in proven writing to deliver. Glasskube shall be in default of delivery at the earliest upon receipt of this request.

11.3. The customer shall accept minor overruns of up to two weeks of binding delivery dates or deadlines without the consequences of a delay in delivery arising as a result.

11.4. After the unsuccessful expiry of the grace period, the customer can withdraw from the contract or adhere to the fulfilment of the contract. If Glasskube has already provided partial services, the customer is only entitled to withdraw with regard to outstanding partial services.

11.5. If, during an ongoing delay, delivery becomes impossible by chance, Glasskube is not liable if the damage would also have occurred if delivery had been made on time.

11.6. In the event of force majeure or a disruption of operations through no fault of Glasskube (including those of our business partners e.g. server provider), which temporarily prevent Glasskube from meeting the agreed dates and deadlines, these delivery dates and deadlines will be extended by the duration of the disruption of performance caused by these circumstances. Glasskube will inform the customer of the expected delay as soon as possible after becoming aware of such delays.

12. Termination, Renewal withdrawal from the contract

12.1. Unless otherwise agreed, each party may terminate the contract, at the end of each month giving a one-month notice period.

12.2. In the case of continuing obligations (recurring services such as Managed Solutions), a fixed term is agreed for these contracts. The contract term is automatically extended by the originally agreed term if one party does not terminate the contract before the end of the contract term. Unless otherwise agreed, the contract term is either one month or one year. One-year contracts must be terminated 3 months before the end of the contract period, monthly contracts must be terminated 7 calendar days before the end of the contract period.

12.3. The following applies to all contracts:

12.4. Glasskube is entitled to extraordinary termination if the performance of the service is impossible for reasons for which the customer is responsible or is further delayed despite the setting of a period of grace of at least 7 days;
12.4.1. there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the request of Glasskube or provide suitable security.
12.4.2. Force majeure, strikes, natural disasters, transport blockades and similar events release us from the agreed delivery deadline or delivery obligation. Irrespective of this, we are entitled to an unconditional and immediate right of withdrawal in this case.

12.5. In the event of non-compliance with essential contractual obligations on the part of the customer (such as default in payment), Glasskube is entitled to demand the return of deliveries already made from the customer or to insist on the fulfilment of the contract. In this case, the return takes place at the risk and expense of the customer. Any claims for damages remain unaffected by this.

12.6. Glasskube can terminate a contract with immediate effect and withdraw access if the customer is at least 2 months in default with the payment of the corresponding fee.

12.7. Glasskube may terminate the contract with immediate effect and withdraw all access to the software from the customer if the customer infringes Glasskube's intellectual property or the terms of use of this contract. Advance payments will be refunded, less any costs incurred and claims for damages by Glasskube.

12.8. Upon termination, the customer will receive a copy of the database from Glasskube.

13. Prices & Quotations

13.1. All prices in individual offers are subject to change. Unless otherwise stated in the offer, all prices are in euros and exclusive of statutory VAT and plus all applicable fees and other taxes.

13.2. Unless otherwise agreed, Glasskube's claim for payment arises for each individual service as soon as it has been provided. Glasskube is entitled to demand advance payments from the customer to cover its expenses.

13.3. Recurring services (e.g. software solutions operated for the customer (Managed Solutions)) are invoiced yearly or monthly in advance, if not otherwise defined in the individual contract.

13.4. Individual services are usually invoiced retrospectively (i.e. after delivery). However, Glasskube may issue interim invoices, which are due immediately.

13.5. All services provided by Glasskube that are not expressly covered by the agreed costs are remunerated separately by the customer. All cash expenses and fees incurred by Glasskube are to be reimbursed by the customer.

13.6. Cost estimates from Glasskube are always non-binding and chargeable. If, in the course of processing the order, it is foreseeable that the actual costs will exceed those estimated by Glasskube in writing by more than 10 %, Glasskube will point out the higher costs to the customer.

13.7. Prices for other services (individual adjustments, etc.) are always calculated at those hourly rates which are in force on the day of performance. The same applies to the travel expenses and accommodation costs of our employees.

13.8. It is expressly agreed that the value of the prices and hourly rates from Glasskube shall be indexed. The consumer price index 2020 (base year 2023) published monthly by Statistics Austria or an index replacing it shall serve as a measure for the calculation of the stable value.

13.9. The index figure calculated for the month of conclusion of the contract serves as the reference figure for this contract. Fluctuations of the index figure upwards or downwards up to and excluding 2% shall be disregarded. This margin shall be recalculated each time it is exceeded upwards or downwards, whereby the first index figure outside the respective applicable margin shall always form the basis both for the recalculation of the claim amount and for the calculation of the new margin. All rates of change shall be calculated to one decimal place. Failure to assert the value adjustment does not constitute a waiver thereof; rather, Glasskube is entitled to assert this price adjustment up to three years after the point in time from which a price adjustment would have been possible for the first time.

14. Payment

14.1. Unless otherwise defined, e.g. in cases where the Glasskube services are ordered and paid via a third party, the following applies:

14.2. Glasskube's invoices are due without any deductions from the date of the invoice and are payable within 10 calendar days of receipt of the invoice by bank transfer, unless otherwise agreed. Compliance with the agreed payment dates constitutes an essential condition for Glasskube's performance of the contract. Bank transfers shall only be deemed to be payment upon receipt of the amount in the account designated by us.

14.3. Delivered goods remain the property of Glasskube until full payment has been made. The retention of title also serves as security for our claims from the ongoing business relationship until settlement of any claim to which we are entitled in connection with the purchase.

14.4. In the event of a delay in payment by the customer, Glasskube is entitled, at its own discretion, to demand compensation for the actual damage incurred or interest on arrears at the statutory rate. For businesses, this is 9.2% p.a. above the base interest rate. This claim also includes compound interest. In addition, the customer undertakes to reimburse the court and out-of-court costs as well as the dunning and collection charges necessary for the appropriate legal prosecution in the event of default in payment. This shall in any case include a lump sum of EUR 40 as compensation for collection costs in accordance with § 458 UGB. The assertion of further rights and claims remains unaffected by this. In the event of a delay in payment by the customer, Glasskube is not obliged to provide its own service for as long as this delay continues. Furthermore, in the event of default, Glasskube is entitled to demand immediate payment of all outstanding claims and/or advance payment or the provision of security.

14.5. The customer is not permitted to offset any disputed counterclaims or counterclaims that have not been legally established without our express consent. Likewise, the customer is not permitted to exercise a right of retention without a legally binding title or on the basis of claims from other legal transactions.

15. Warranty

15.1. This article only applies in cases where statutory warranty is applicable to the respective good or service, with the amendments set forth below.

15.2. The customer shall immediately inspect deliveries for any obvious defects. If the customer expressly or tacitly waives the inspection, it is to be assumed that Glasskube has delivered properly. Complaints about the quality are only recognized if they are made in writing to Glasskube within 14 days after receipt of the goods at the place of receipt. The complaint must be sufficiently substantiated and supported by appropriate evidence. Hidden defects shall be notified immediately upon discovery in the manner set out above.

15.3. Minor technical changes as well as deviations from drawings and catalogues shall be deemed approved in advance.

15.4. Any warranty period shall be a maximum of 6 months from acceptance. The existence of defects at the time of handover must be proven by the customer. § 924 ABGB (Austrian Civil Code) and § 933b ABGB shall not apply.

15.5. In the case of defects which have been communicated by the customer with justification, the warranty shall be limited to improvement, new delivery or supplementary delivery of what is missing. Several improvements and replacement deliveries are permissible, provided that this is economically feasible, but the customer has no legal claim to this. Claims for reversed transaction and price reduction are excluded, unless Glasskube offers the customer such claims or an improvement is uneconomical for Glasskube. The warranty claim expires if the customer or a third party not authorized by Glasskube has made changes, manipulations or repairs to the product. In the event of improvement, new delivery or supplementary delivery of what is missing, the period for the assertion of claims shall not recommence.

15.6. In the event of a justified notice of defect, the defects shall be remedied by Glasskube within a reasonable period of time, whereby the customer shall enable Glasskube to take all measures necessary for the investigation and remedying of the defect. Glasskube is entitled to refuse to improve the service if this is impossible or involves a disproportionately high effort for Glasskube, in which case Glasskube may choose to rescind the contract or reduce the price.

16. Liability

16.1. Unless otherwise agreed in the respective offer or individual contract, or elsewhere in these GTC or the data processing agreement, the parties shall be liable for compensation for damage culpably caused. The parties shall not be liable for slight negligence. In the event of gross negligence, the amount of liability shall be limited to the value of the delivery/service concerned (excl. taxes and fees), in the case of recurring services to the remuneration of the previous year. Limitations of liability do not apply to compensation for personal injury. Claims for damages shall in any case only include the mere repair of damage, but not consequential damages, loss of profit or claims by third parties.

16.2. Claims for damages must be asserted in court at the latest within six months after knowledge of the damage and the damaging party, otherwise they will be forfeited.

16.3. The injured party must provide evidence that any damage he has suffered is due to our (joint) fault. The injured party must also provide evidence that he/she is not at fault for the damage incurred. This applies to all forms of fault (slight/gross negligence, intent).

16.4. In the case of contracts for work and services, Glasskube is not liable if the customer insists on a certain implementation despite the fulfilment of the warning obligations.

16.5. Insofar as online services of Glasskube offer the possibility of accessing websites, database services etc. of third parties, for example through links. Glasskube is in no way liable for the accessibility, existence or security of these databases or services, nor for their content. Liability, if applicable, only comes into consideration within the framework of the E-Commerce-Code (ECG) under the restrictions agreed in this point.

16.6. The customer acknowledges, that the service levels and limitations of liability for third party services, e.g. the server provider, also apply to Glasskube’s services insofar the cause of a damage lies with this third party service.

17. Data protection

17.1. Both Glasskube and the customer are obliged to comply with the provisions of the Austrian Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.

17.2. Glasskube processes the necessary personal data for the purpose of fulfilling the contract. The detailed data protection information in accordance with Art. 13 ff GDPR was enclosed with these GTC or the offer.

17.3. If Glasskube is a processor for a specific contractual relationship within the meaning of the GDPR, the data protection agreement (Appendix 1) applies and is an integral part of these GTC. Any liability provisions in the data processing agreement shall take precedence over the provisions in these GTC.

18. Place of performance, place of jurisdiction, choice of law and contractual language

18.1. The place of performance for the delivery/service and payment is the registered office of Glasskube.

18.2. A possible ineffectiveness/invalidity/voidness of individual provisions of these GTC has no influence on the validity and applicability of the remaining provisions. In such a case, Glasskube and the customer undertake to replace this provision with one that is legally effective and valid and corresponds in its economic effect to the replaced provision - as far as possible and legally permissible.

18.3. The assignment of individual rights and obligations from these GTC and the (individual) contract by the customer are only permitted with the express written consent of Glasskube.

18.4. The place of jurisdiction for all disputes between Glasskube and the customer arising directly or indirectly from the contract itself or from the contractual relationship is agreed to be the competent court in Vienna.

18.5. This contract shall be governed by Austrian substantive law to the exclusion of the conflict of laws rules of private international law (e.g. IPRG, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods.

18.6. The contractual language is English.