CYBERTEC Terms of Service

General service and support conditions 

CYBERTEC PostgreSQL International Gmbh

2021

This terms of service apply to all services mentioned below which are provided by CYBERTEC PostgreSQL International GmbH („CYBERTEC”) to its contractual partners („Client”) and determine the conditions for the provision of the respective agreed services by CYBERTEC to the client.

CYBERTEC concludes contracts for the services mentioned below exclusively on the basis of these terms of service. They do not affect the validity of the General Terms and Conditions of CYBERTEC.

Unless otherwise agreed and unless terms of this agreement are not considered as mandatory, deviating individual agreements between CYBERTEC and the client take precedence over these terms of service. Terms and conditions provided by the client shall only apply to the extent that this has been expressly agreed upon in writing.

1. General conditions

1.1 Scope of services

The following listing gives an overview about the software that CYBERTEC usually uses to provide services as well as the software which CYBERTEC generally supports.

The specific software to be used shall be determined by the respective individual agreement as well as by the purpose of the assigned service. Any inclusion of software products not listed below shall only be permissible by written individual agreement. If the inclusion of a specific software product is disputed, it shall be deemed not to be included in case of doubt.

CYBERTEC services generally include the following software:

  • PostgreSQL
    • Patroni
    • pg_timetable – Advanced Job Scheduling
    • pg_showplans – Monitoring Execution Plans
    • pg_squeeze – Shrinks Tables
    • Walbouncer – Enterprise Grade Partial Replication
    • PL/pgSQL_sec
    • PostgreSQL Transparent Data Encryption (TDE)
    • Data Masking for PostgreSQL
    • PGWatch – PostgreSQL Monitoring Tool
    • oracle_fdw
  • pgbackrest
  • pgbouncer
  • PostGIS

Linux distributions:

  • RHEL / CentOS
  • Oracle Linux
  • Ubuntu
  • Debian
  • SUSE Linux / SLES

UNIX systems:

  • FreeBSD

Windows systems:

  • Windows Server*
    *not all packages and extensions available

Solaris, HP-UX and AIX, by special arrangement only. The test environment shall be provided by the customer.

1.2 Contractual basis for CYBERTEC Services

The following documents shall be the exclusive subject matter of the contract, unless otherwise agreed, and shall govern the provision of the contractual services covered by these Terms of Service in descending order of priority.

  • Individual agreement
  • Terms of service
  • General terms and conditions by CYBERTEC

1.3 General conditions of service

Service hours, holidays, night work

The CYBERTEC services are generally provided during usual working hours. For services during night hours (20:00-08:00 CET/CEST) as well as for work on weekends and holidays, a 100% surcharge per hour applies. This surcharge will not be charged for 24 hour services  (24/7 Support Packages and 24/7 Remote DBA).

Access to the Client’s systems is provided via 

  • SSH
  • VPN

The use of other options than those mentioned needs to be agreed and is possible under the conditions set by CYBERTEC. If additional costs arise due to this, these are to be borne by the client. Any tools used at the request of the client shall be made available to CYBERTEC free of charge, as far as this is necessary for the provision of services.

Some of the tools used to deliver services are designed to collect information about the configuration of your computing environment („Tool Data”) and do not access, collect, or store any personal information (other than contact information) or business information residing in your computing environment.

By using the tools, you consent to the transfer of the tool data to CYBERTEC in order to receive reactive and proactive support services. In addition, the data may be used by CYBERTEC to assist you in managing your services specified in the Individual Agreement, to ensure compliance with the terms of service and to assist CYBERTEC in improving product and service quality.

Place of fulfillment, travel expenses

In principle, and unless otherwise agreed, all services shall be provided remotely (via remote access to the Client’s systems). If the provision of services on site is agreed, travel costs and expenses shall be borne by the client in any case.

Cancellation
In case of cancellation of already scheduled service dates initiated by the client, 50% of the offered service will be charged up to 60 days before the service is to be provided, 75% up to 30 days before, and 100% if the cancellation is made less than 30 days before.

In case of a postponement initiated by the client, the client has to bear 100% of the travel expenses that have already occurred for CYBERTEC. Cancellation fees do not apply in case of postponement.

Foreign clients

For services provided by CYBERTEC to a company within the meaning of the Austrian Value Added Tax Act with its registered office abroad, the liability for tax is transferred to the client as the recipient of the service in the cases regulated by law (so-called reverse charge procedure). CYBERTEC therefore offers the service without sales tax.

2. Services

2.1 Support

The conclusion of a support contract with CYBERTEC entitles the client to use the technical support of CYBERTEC within the agreed scope of services.

Only certain specifically named individuals are entitled to report support cases on the side of the customer. Support requests may therefore only be made by administrators who have access to the ticket system (general or personal login).

Time of performance

Support services are generally provided every day from 0-24 hrs, which means that the service is available 24 hours a day.

Support services with booked 9/5 support are provided from Monday to Friday between 9-17 hrs CET/CEST. Holidays and weekends are excluded.

Scope of performance

The scope of services for the support services is defined in the PDF attached to the respective individual agreement, which lists the support services in a taxative manner, and in the respective support package booked according to the individual agreement.

A change to a support package with a higher scope of services can be requested by the client at any time and becomes valid at the beginning of the next month.

English is defined as the standard language for the provision of support services.

Old PostgreSQL versions are supported by CYBERTEC for two years beyond the end of support through the PostgreSQL community.

You can find the history of releases here: https://www.postgresql.org/support/versioning/

Start date, duration and termination

The start date for support services is the date determined in the individual agreement. If no date was set, the start date is the date of signature of the agreement by the client.

The support contract has a minimum runtime of 12 months and will be automatically prolonged thereafter for another 12 months, if it is not terminated beforehand in written form within the notice period of 3 months.

Cancellation of support services is not possible. Already paid amounts are not refundable.

Service fee, invoicing

Support services will be invoiced periodically prior to service provision. The charges are generally based on vCores, whereby a fixed price is to be paid per vCore. Any change in the number of cores has to be communicated to CYBERTEC immediately and becomes effective with regard to the service fee at the beginning of the next billing period.

If the addition „unlimited support” has been agreed due to the installation size, the above rule does not apply. The support services will be invoiced in advance at a fixed price.

CYBERTEC reserves the right to conduct audits to determine the installation size. In case of late payment, CYBERTEC reserves the right to stop providing support services.

CYBERTEC reserves the right to adjust prices to maintain the original spending capacity once the first 12 months after the support contract has come into effect initially have elapsed.

In case of an increase of prices, the client has the extraordinary right of termination. This right can be exercised within 30 days after the announcement of the price increase. If the client does not exercise his extraordinary right of termination within this period, the price adjustment shall be deemed to have been accepted.

CYBERTEC is not obligated to provide technical support after the end of the support period.

Handling of support cases

CYBERTEC does not become active on its own, but only when a support case is reported by the client.

The service fee is to be paid independently of a utilization of the support service.

Support is generally provided remotely (via remote access to the client’s systems). Direct access to the client’s systems via the above mentioned possibilities will only be provided if CYBERTEC has been granted the necessary access. If CYBERTEC does not have access to the systems of the principal, support can only be provided by verbal and/or written assistance.

On-site support is only provided according to a prior agreement and in exceptional cases. Travel expenses are not included in the service fee and have to be borne by the client.

There is no guarantee that the support case will be processed by a specific consultant.

The reporting of a support case has to be done via the following systems.If the request is made via another system, the processing of the support case and fulfillment of set response times is not guaranteed.

Support cases can be reported via the following systems:

  1. Ticket system
  2. Telephone hotline

 

Ticket system

Support requests usually shall be submitted via the ticket system. The ticket system manages all tickets from the client’s organization. Therefore, all users with access rights can view the status of any ticket at any time and take over if necessary. External users that are not part of an organization are not able to view their tickets.

Notification about status changes and comments will be sent to the ticket creator by e-mail automatically.

The ticket system is publicly accessible and protected by SSL. It is accessed via an user account with password. The corresponding information is sent to the client after the support contract has been concluded.

Response times

Our company offers preferential treatments only for support requests via 24/7 and 9/5 emergency hotline. For the ticketing system, no preferential treatment can be offered. The following response times for emergency hotline requests are available:

PRIORITY

RESPONSE TIMEDESCRIPTION
HIGH PRIORITYmax. 30 minutes

 

Problems that cause downtime (such as core dumps within PostgreSQL) or problems that suggest potential data loss are classified as high-priority.
MEDIUM PRIORITYmax. 4 hoursIssues that do not endanger the 24/7 operation but which stop development or lead to problems in the foreseeable future are classified as medium priorities.
LOW PRIORITY„next business day“

Questions that are only intended for clarification are managed under low priority.

 

Response time” is defined as the time between the initial call and the actual first telephone contact.

2.2 Remote DBA

Unless otherwise specified in this section, the conditions for Support Services set forth in Section 2.1 shall also apply to Remote DBA Services.

Within the scope of remote DBA, the client’s databases are completely managed and monitored by CYBERTEC database administrators (DBAs). In addition, support services are provided.

Unless 9/5 Dedicated DBA has been assigned, there is no entitlement to a specific DBA. In case of vacation, sick leave of the Dedicated DBA or in case of his/her leaving of the company, another DBA will be provided by CYBERTEC.

Implementation of remote DBA, access to the client’s system

The access to the clients systems is provided via

  • VPN (IPSec)
  • SSH

Unless otherwise agreed, the service shall be provided via IPSec tunnel and SSH as well as database access. A use of other systems for the provision of services shall only occur in the event that the performance of the support service via IPSec tunnel and SSH is impossible on the part of the client or on the part of CYBERTEC.

An IPSec tunnel or similar is required to ensure that the systems can be monitored automatically and without personal accounts or two-factor authentication.

For monitoring the databases, a general OS and DB user is required. Personal accounts cannot be used for this purpose.

Time of performance

Remote DBA services are generally provided every day from 0-24 hrs, which means that the service is available 24 hours a day.

9/5 remote DBA is provided from Monday to Friday between 9-17 hrs CET/CEST. Holidays and weekends are excluded.

2.3 PostgreSQL Consulting Services

The PostgreSQL Consulting Services include all PostgreSQL Services that are not covered by any other section of these Terms of Service. In particular, it does not include support, remote DBA or training services.

Scope of performance

The scope of services shall be determined by the respective individual agreement. Such agreements are to be interpreted restrictively.

The service is provided once and in a single session. As a rule, the scheduling of the service provision takes place after the service contract has been concluded.

The PostgreSQL Consulting Services are not intended to impart knowledge to the extent and level of detail of a training. No training materials or other similar materials will be provided.

Within the scope of the requirement analysis, CYBERTEC consultants only have an advisory role. It merely determines what services are needed based on the client’s requirements and systems. No active work on the client’s systems will be performed.

The services are standardly provided in English. A provision in the following languages is also available on request: Spanish, Estonian, Polish, Ukrainian, Russian, Bosnian, Croatian, Serbian, Slovenian.

Consulting pool

Deviating from the rules outlined above, the following applies to Consulting Pools: The client has a time credit, which he may use on an hourly basis for PostgreSQL Consulting Services. For the use of services within the Consulting Pool a separate appointment has to be arranged with CYBERTEC each time.  Appointments will be assigned according to availability. The client is not entitled to preferential treatment. The Consulting Pool is valid for 12 months. Once booked, a Consulting Pool cannot be cancelled.

Lager projects

The following conditions shall apply to orders for which only a non-binding cost estimate is provided prior to performance of the service. A non-binding cost estimate shall be provided in cases where the expense can only be roughly estimated at the time of the order.

Cost estimates provided by CYBERTEC are based on a non-binding approximation of personnel expenses and required resources according to the scope of the project. If there is an increased demand compared to the cost estimate, additional costs will be charged on top. The charge for the additional hours required may differ from the one in the original agreement.

CYBERTEC is to be granted a preliminary lead time of four weeks for resource planning by the client starting from the conclusion of the contract. A claim to the provision of services therefore only arises after the expiration of this period of time.

Invoicing

Unless otherwise agreed, CYBERTEC Consulting Services shall be invoiced retrospectively on the basis of the established hourly rate. Every hour begun will be charged fully.

The invoicing of a consulting pool is done in advance after conclusion of the contract. Each hour begun is charged fully and subtracted from the time credit. Unused time credit expires after a period of 12 months.

2.4 Courses

There are different modes for CYBERTEC courses:

Mode 1 – Scheduled on-site or online courses: 

These courses can be booked individually by participant. Date and agenda are fixed and cannot be changed. Invoicing is done in advance and individually per participant. Other costs and expenses incurred in connection with the course (such as travel expenses) are to be borne by the participants themselves.

Online courses can be cancelled by CYBERTEC up to three calendar days before the start, on-site courses up to seven calendar days before the start. This is especially relevant when the minimum number of participants has not been reached. In this case, the participant has the choice to either participate in the next course on the same topic or to have the paid charge refunded.

Mode 2 – Courses specific for companies

Companies can purchase on-site or online course days. The agenda needs to be agreed upon between CYBERTEC and the client. The invoicing is done in advance and at a flat rate for a maximum of 10 participants. If additional participants take part, the price will be raised. Any travel expenses will be charged additionally..

General conditions

Recording as well as (internal) sharing of all courses is prohibited, regardless of the course mode.

Online courses are held via a software tool provided by CYBERTEC. The participants themselves are responsible for ensuring that all necessary requirements for the use of the tool are met. CYBERTEC will announce the tool used as well as the technical requirements to be fulfilled for the use of the tool at the latest three working days before the start of the course.

For courses according to Mode 2, other tools can also be used if agreed upon and if the client provides them. CYBERTEC will not bear any costs for external tools. In addition, CYBERTEC reserves the right to refuse the use of certain tools for factual reasons.

There is no entitlement to a specific trainer. Generally, the course language is English. Other languages can be agreed upon separately. The following languages can also be offered on request: Spanish, Estonian, Polish, Ukrainian, Russian, Bosnian, Croatian, Serbian, Slovenian.

The training environment is generally provided by CYBERTEC. The client’s infrastructure must ensure access to the training environment. Detailed connection information will be provided in due time. The use of a training environment provided by the client may also be agreed upon for courses of mode 2.

Invoicing

The charging of a CYBERTEC training is done in advance. Travel expenses incurred by the client when traveling to the training location are not included in the training price and are to be borne by the client.

3. Fault in performance, liability

3.1 Default or impossibility of performance

If the fulfillment of the contract turns out to be actually or legally impossible during the provision of services, CYBERTEC is obligated to inform the client thereof immediately. The client needs to adapt the service description or establish the preconditions to make the service provision possible. Otherwise CYBERTEC has the right to reject the provision of services. If the impossibility of fulfillment is the result of a failure of the client or a subsequent change of the service description by the client, CYBERTEC is entitled to withdraw from the contract. CYBERTEC is not responsible and liable for any damages resulting from a non-fulfillment of the client’s obligation to cooperate. The costs and expenses that have arisen at CYBERTEC up to that point are to be compensated by the client.

In the case of CYBERTEC’s default, the client is only entitled to withdraw from the contract, if CYBERTEC has been granted a reasonable grace period in writing by the client for the performance of the agreed service and the following requirements are met: CYBERTEC has not performed the service in essential parts within this period and furthermore the agreed date of performance has not been met due to CYBERTEC’s sole fault or unlawful action.

3.2 Warranty

CYBERTEC is obligated to provide the services in accordance with the contract and free of defects. If CYBERTEC does not provide the services at the scheduled times or only defectively, thus with significant deviations from the agreed service description, CYBERTEC is obligated to provide its services properly and free of defects within a reasonable period of time. CYBERTEC may, at its option, either repeat the performance of services or perform necessary rectification work.

If the defectiveness is based on the client’s actions or on a breach of the client’s obligations, any obligation to provide rectification of defects free of charge is excluded. In these cases, the services are nevertheless considered to be rendered in accordance with the contract, regardless of possible deviations. At the request of the client, CYBERTEC will provide a remedy of defects at the client’s expense.

The client will support CYBERTEC in the elimination of defects and provide all necessary information. Occurring defects are to be reported to CYBERTEC immediately in writing and with an exact description of the problem. The client bears the additional expenses for the elimination of defects caused by a delayed report. The provisions of §§377 f UGB remain unaffected.

The shifting of the burden of proof, that is the obligation of CYBERTEC to prove its innocence of the defect (presumption of defectiveness according to §924 ABGB), does not apply.

The Client’s claim to rectification of defects shall be excluded if the defect cannot be reproduced or shown or if it is based on the Client’s breach of obligations to cooperate.

3.3 Liability

CYBERTEC is liable for breach of contractual or non-contractual obligations only in case of intent or gross negligence.

This exclusion shall not apply in the event of culpable breach of material contractual obligations, insofar as this endangers the main purpose of the contract.

Where CYBERTEC is also liable for slight negligence, the liability is limited to the extent of damage that CYBERTEC typically had to expect at the time of the conclusion of the contract due to the circumstances given there. In cases of liability for slight negligence CYBERTEC is not liable for consequential damages, consequential harm caused by a defect or loss of profit.

CYBERTEC never is operator or hoster of productive systems. Therefore, CYBERTEC is not liable for data loss that is not caused by CYBERTEC’s own fault at service provision, especially not if the data loss is caused by hardware failures, improperly programmed applications or mistakes made by users.

CYBERTEC is not liable if the loss by the client could have been avoided by reasonable precautionary measures on the part of the client (in particular daily backups of all data and programs), unless the implementation of these precautionary measures has been expressly taken over by CYBERTEC contractually.

CYBERTEC shall not be liable for any damage resulting from an event in the sphere of the client or a service provider of the client.

CYBERTEC does not assume any liability or guarantee for the accuracy of the results worked out or determined by it, if their inaccuracy is the result of incorrect or incomplete provision of information given by the client.

The above limitations of liability shall also apply in the event that claims for damages are made against employees or representatives of CYBERTEC.

4. Miscellaneous

Data Privacy

To the extent that the client provides personal information within the scope of the provision of services, CYBERTEC will comply with the following provisions: https://www.cybertec-postgresql.com/en/data-protection-policy/

Non-disclosure

The parties shall keep secret all confidential information of the other party that comes to their knowledge during the cooperation and shall protect it with due diligence from being known by unauthorized persons. CYBERTEC employees and subcontractors shall not be considered as unauthorized. Employees and third parties deployed by the parties are to be obligated to keep confidential information a secret.

All data is subject to secrecy if it is identified in writing as being subject to secrecy, or its need for secrecy clearly results from its nature (trade and business secrets).

Information is not subject to non-disclosure if the receiving party can prove that

  1. the information is or was generally accessible
  2. it was already in possession of the information prior to the obligation to maintain confidentiality
  3. the information was produced independently and without the use of confidential information by another party
  4. the information was lawfully acquired from a third party who was not bound to secrecy.

Audits

CYBERTEC is entitled to audit the client’s compliance with the terms of the contract itself or through a third party that has been determined by CYBERTEC and is bound to secrecy. The audit shall take place after prior announcement during the usual business hours and in a manner that restricts the business operations at the client as little as possible. For this purpose, the client shall grant CYBERTEC access to the relevant information, databases, log files, etc., enable CYBERTEC or the third party to monitor compliance with the contract and fully support CYBERTEC or the third party in doing so.

External tools for service delivery

If documents or services are created by the client, which are legally protected, are made available to CYBERTEC for the provision of services, the client grants CYBERTEC an unrestricted but non exclusive right of use to these tools in the case of a conclusion of the contract. Such a right is considered to be agreed upon, in the absence of an explicit agreement to the contrary.

Non-solicitation agreement

Both parties agree not to directly or indirectly entice away any employees of the other party during and one year after the termination of this contract. Neither party will, without the other parties’ prior written consent, directly or indirectly encourage or solicit any employee or consultant of the other party (including its affiliates) to leave the party for any reason. Notwithstanding the foregoing, if any person employed by one party or its affiliates actively seeks out the other party and initiates contact with them for purposes of obtaining employment, such action shall not constitute a violation of this provision.

For each case of violation thereof, the violating party shall compensate the other party with a contractual penalty in the amount of EUR 50,000.00.

Assignment of rights

The client may only assign rights and transfer obligations arising from the contract between CYBERTEC and the client with CYBERTEC’s prior consent.

CYBERTEC is entitled to convey contracts concluded with the client with all rights and obligations to a company affiliated with CYBERTEC.

Use of the services

The services subject to these terms of service may only be used by the client itself. The use of the services by companies other than the client is not permitted. This particularly applies to companies affiliated with the client, members of the group or third parties acting on the client’s behalf.

Limitation
Contractual as well as legal claims against CYBERTEC become time-barred within a period of one year from the legal beginning of the limitation period. This does not apply to claims based on intentional or grossly negligent behavior of CYBERTEC, its representatives or vicarious agents as well as claims regarding personal injuries. These become time-barred according to the legal regulations.

References

CYBERTEC is entitled to refer to the client (company name and logo) as reference customer within the full scope of its commercial activity. This consent can be revoked at any time. The revocation must be made in writing. If the removal of the client as reference customer is not possible after receipt of the revocation due to technical and/or practical reasons (e.g. already published in print media etc.), no claims of the client can be asserted. The revocation does not affect the validity of these terms of service.

Choice of Law and Agreement on Jurisdiction

Austrian substantive law shall apply to this contract. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.

All potential disputes shall be settled exclusively by the materially competent court of CYBERTECs place of business.CYBERTEC is entitled to sue the client also at the general place of jurisdiction of the client.

Verbal agreements

There are no other ancillary agreements or assurances to this agreement, including oral agreements. Any changes and amendments to the contract must be made in writing. This also applies to the annulment of this formal requirement.

Change of conditions

These terms of service are subject to change at any time at CYBERTEC’s sole discretion. Changes will not result in a significant reduction in the level of service.

Translations

In case of an ambiguous or incorrect translation of these terms of service, all provisions shall apply as they have been expressed in writing in german.

Severability clause

Should one or more provisions of the contract be or become partially or wholly invalid or impracticable, this shall not affect the validity of the remaining provisions. The invalid or impracticable provision shall be replaced by an appropriate valid provision that has, to the greatest extent possible, a similar commercial effect to the invalid or impracticable provision.