1. Introduction and Scope
These General Terms and Conditions (GTC) apply to all customers of the Software as a Service (SaaS) services (hereinafter: "Service") and the consulting services of loyos bi GmbH (hereinafter referred to as "Provider"; Provider and Customer are jointly referred to as "Contracting Parties"). By signing the offer, or alternatively, if no signed offer exists, by commencing performance of the contract by the Customer, e.g., by sending data, the Customer accepts these Terms and Conditions. The offer, these Terms and Conditions, and the descriptions of services on the Provider's website together constitute the contract.
The person acting on behalf of the customer declares that they are authorized to legally conclude this contract on behalf of the customer and that they agree to the validity of this contract. The provider reserves the right to amend these Terms and Conditions with future effect if this is necessary for compelling reasons. Compelling reasons exist in particular if the amendments become necessary due to adjustments to changed legal requirements, changes in supreme court rulings, or due to technical developments, especially for improving IT security. The provider will inform the customer of any significant changes to the Terms and Conditions in writing (e.g., by email) at least four weeks before they come into effect. The customer has the right to object to the amendment within one month of receiving the notification of amendment. If no objection is received, the amended Terms and Conditions are deemed accepted. The provider will point out the significance of remaining silent in the notification of amendment. The current Terms and Conditions can be accessed at https://www.loyos-bi.de.
2. Subject matter of the contract / Scope of services
The subject of this contract is the temporary use of the service as specified below, as well as the setup of the service and the consulting services provided by the provider. The provider makes browser-based reporting solutions available to the customer, built on the Microsoft Power BI platform. The provider will provide the necessary guest access and licenses. The customer can access the service via a standard web browser. The customer is aware that the provider will have access to the customer's data in the course of fulfilling this contract. Relevant provisions can be found in particular in sections 13 (Confidentiality) and 14 (Data Protection) of these Terms and Conditions.
The service includes standard reports provided by the vendor. The design, number, and content of these standard reports are continuously developed and adapted by the vendor. The vendor always strives to implement improvements in consultation with users and customers, but the final decision regarding the design and selection of the included reports rests with the vendor.
Furthermore, customized reports can be developed and provided to the customer. If this is not already included in the offer, it requires a separate order from the customer. If the separate fee for developing the customized solution has not been specified, the provider will bill the service on an hourly basis according to section 5, using the hourly rate specified in the price list for the customized setup.
The format in which the customer provides the data is defined during the service setup. The customer can then initiate the import of the updated data. If the data format changes, the interface for importing the data may need to be adjusted accordingly. The provider will bill the customer separately for this adjustment.
The data update, i.e., the time between the customer initiating the update and its display in the service, can in exceptional cases take up to two (2) hours or longer. This depends on the volume of data and the current workload of the Microsoft servers (which varies by time of day). However, updates typically take only a few minutes.
If the customer requires assistance using the service, they can contact the provider by telephone at +49 (0)40 300 878 44. This will be billed according to section 5, unless the support is for technical malfunctions or software errors. Telephone availability is guaranteed during service hours (Monday to Friday between 9 a.m. and 5 p.m., excluding regional holidays). In addition, inquiries can be sent at any time to the email address support@loyos-bi.de. A response, either by telephone or email, will be provided within a maximum of 24 hours, counting only hours within regular service hours. Otherwise, the provider offers support in accordance with the provisions in section 4.
User management, i.e., the creation of users and the granting of permissions, is carried out by the provider based on the written specifications provided by the customer.
If the customer wishes to add additional products and/or features to the service, this will be agreed upon for a separate fee.
Furthermore, the provider makes the agreed service available to the customer as described on the website.
3. Changes to the scope of services
The provider is entitled to update or otherwise modify the service, provided that the modification is reasonable for the customer, taking into account the provider's interests. Reasonable modifications include, in particular, all changes that do not affect the essential scope of the service or that are necessary for reasons of IT security or due to changes in the legal framework. Should Microsoft Power BI updates necessitate adjustments to the service, the provider will implement these as quickly as possible after becoming aware of the need.
In the event of changes that affect the essential scope of the service, the provider will inform the customer of the upcoming changes with a reasonable notice period in advance.
4. Availability and Support
The provider makes the service available with an availability of at least 98% on an annual average (hereinafter referred to as "minimum availability").
The following are not considered downtime periods when determining whether minimum availability has been achieved:
-Outages due to factors beyond the reasonable control of the provider, such as, in particular, natural disasters, war, acts of terrorism, civil unrest, government actions, or failures of the general network infrastructure,
- Network or equipment failures at the customer's location or between the customer's location and the components used to provide the service and
- Regular maintenance, release updates and emergency maintenance.
Support can be contacted via email at support@loyos-bi.de and by phone at +49 (0)40 300 878 44.
The scope of support essentially includes the following components:
- Customer support for problems encountered while using the service,
- Receiving, classifying and, if necessary, forwarding fault reports as well as
- Identifying the cause of the malfunction, diagnosing the fault, and providing services aimed at resolving the malfunction within a reasonable timeframe.
5. Remuneration
The applicable ongoing fee for the service (hereinafter referred to as the "service fee") and the costs for the one-time setup depend on the agreed scope of services and the details specified in the offer. The one-time standard setup fee will be invoiced immediately upon signing the contract. The individual setup fee and the monthly service fee are due as soon as the service has been initially set up for the user and the app has been activated. Errors in the displayed results that result from incomplete or faulty data provided by the customer do not prevent payment from becoming due. If the app is activated after the 20th of a calendar month, the monthly service fee will only be charged starting in the following month. Invoicing will take place monthly at the end of the month.
Telephone support or other services not related to a technical fault in the service will be billed separately. The provider is not obligated to provide separate notification of the costs before providing the services. Billing is based on 15-minute increments. The customer will receive detailed documentation of the invoiced expenses. Unless otherwise agreed, the hourly rate specified in the price list for the individual setup applies. Invoices are always issued no later than the end of the month in which the service was provided.
Invoices are payable net within 14 days of receipt. All prices are net, excluding the currently applicable VAT.
6. Customer's duty to cooperate
The customer provides the provider with the names and company email addresses of the individuals who are to be set up as users. The customer will obtain the necessary consent from these individuals. If a user account is to be deleted, the customer is obligated to inform the provider.
To activate the necessary guest access to the provider's Microsoft environment, the designated users must declare that they agree to the requirements set by Microsoft. This declaration must be made during the activation process by checking the corresponding box. Guest access cannot be used without this declaration. A user account is always tied to a specific individual, and the use of a single user account by multiple people is not permitted.
The customer is required to use a current, common web browser to access the services. The provider is not liable for any limitations caused by outdated browsers.
7. Customer's obligations
Users must not disclose their username, password, or other login information to unauthorized persons and must keep it confidential with appropriate precautions. The customer is responsible for informing the individuals they designate as users of this obligation.
The customer is responsible for all activities that take place on their account, regardless of whether they are carried out by users designated by the customer or by third parties. The provider is not responsible for unauthorized access to the user account. The customer must contact the provider immediately if they become aware of any indications that unauthorized activity may have occurred on their account or if account information is lost or stolen.
8. Intellectual property and usage rights to data
All intellectual property rights to the service remain exclusively with the provider. The customer is only entitled to use the service to the extent expressly provided for in this contract or, where applicable, by mandatory legal provisions.
The customer receives the non-exclusive right to access the service via the internet and to use the service in accordance with this agreement. This right is limited to the agreed usage period and to what is necessary for the contractual use of the service or what is legally permissible.
No further rights of use exist. In particular, the customer is not entitled to use the service or any of its components.
to make accessible to third parties (this does not include users from affiliated companies or shareholders of the customer);
to reproduce, sell, modify, alter, manipulate, repair or create derivative works;
to reverse engineer, disassemble or decompile, or use other methods to derive the source code of the software underlying the service;
to use or to use in such a way that no fees are incurred or usage restrictions or quotas are exceeded;
to use it by circumventing the security mechanisms in place;
or to use it to carry out an activity that is harmful to third parties or otherwise unlawful.
The customer shall ensure that data brought into the service does not violate this contract, applicable law or the intellectual property of any third party.
During the term of the contract, the customer permits the provider to view and use, free of charge, the non-personal data that the customer contributes to the service or generates through the use of the service, insofar as this is necessary for the provision and further development of the service.
9. Cloud infrastructure
Regarding its infrastructure components, the scope of service usage is determined by the contractual relationship between the provider and its cloud provider. The service is hosted on the Microsoft Azure infrastructure.
Certain restrictions and conditions apply to the use of such infrastructure and the associated service levels. In particular, the customer's use of the cloud infrastructure is governed by the terms and conditions agreed upon between the cloud provider and the customer. The scope of services for the underlying IT infrastructure is defined by the cloud provider's terms and conditions. The corresponding license terms and service levels are available at https://www.microsoft.com/en-us/licensing/product-licensing/products.
10. Third-party rights
The provider warrants that, to the best of its knowledge, the service is free from any third-party rights that could impair its use. Should any third party assert claims against the customer, the provider will indemnify the customer and assume the defense. Excluded from indemnification are claims arising from use contrary to the contract, modifications to the service, unauthorized combination with other hardware/software, or continued use after the customer has been notified to cease use due to an infringement claim. The customer undertakes to (i) immediately inform the provider, at least in writing, of any such third-party claims, (ii) grant the provider the necessary powers of attorney and allow the provider to control the defense, and (iii) cooperate in the defense. Settlement is only permitted with the provider's consent. This obligation applies accordingly in favor of the provider if third parties assert claims against the provider due to customer-generated content.
In the event of existing third-party rights, the provider may, at its own discretion, (i) acquire the necessary usage rights, (ii) adapt or replace the service, or (iii) terminate the contract and refund the customer a proportionate share of the fee.
11. Liability for Defects
The provider is liable for ensuring that the service essentially fulfills the functions described on the provider's website and in the offer, or otherwise expressly agreed between the parties.
The provider is not liable for the accuracy of the entered and output data, nor for decisions made based on this data. The customer is solely responsible for regularly verifying the accuracy of the output data.
The provider assumes no liability for the service meeting the customer's specific requirements.
12. Rectification of defects
If errors occur in the service, the provider will rectify them as quickly as possible and within reasonable limits.
13. Secrecy
The contracting parties are obligated not to disclose to third parties any confidential information (including trade secrets) that they learn in connection with this contract and its performance. Confidential information is any information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, tangible, or oral form. Information that is not considered confidential in the foregoing sense is information that (i) was publicly known or known to the contracting parties at the time of disclosure or subsequently becomes so; (ii) was provided to the contracting parties by a third party without breach of law; or (iii) was developed by the contracting parties themselves without using confidential information.
The confidentiality obligation does not apply to the extent that the contracting parties are legally obligated to disclose the confidential information or are required to do so by a legally binding or final decision of an authority or court. In this case, the contracting parties will inform each other immediately of the obligation to disclose. Furthermore, in the course of disclosure, the contracting parties will indicate that the information in question constitutes trade secrets and will ensure that the provisions of Sections 16 et seq. of the German Trade Secrets Act (GeschGehG) are applied.
14. Data protection
As part of fulfilling the contract, the provider gains access to personal data from the customer's sphere of control. This constitutes data processing by the provider under the customer's instructions, and the data processing agreement between the contracting parties applies to this processing.
The provider undertakes in particular to collect personal information or data only for the purposes provided for in this contract, not to make it accessible to third parties and to delete it from its systems as soon as it is no longer needed.
If pseudonymization of data is planned, it must be carried out by the customer.
If, within the scope of this contract, the provider is also provided with personal data from companies other than the customer, in particular subsidiaries or affiliated companies of a group, the customer shall ensure that all necessary agreements have been made with these other companies to ensure that the data provision complies with the currently applicable data protection laws.
15. Liability
The provider is liable to the customer in cases of intent, gross negligence, culpable injury to life, body or health, defects that the provider has fraudulently concealed or whose absence he has guaranteed, as well as under the Product Liability Act.
In the event of a breach of essential contractual obligations, the provider shall also be liable in cases of gross negligence and in cases of simple negligence, limited to the foreseeable damage typical for this type of contract at the time of its conclusion.
Furthermore, in the case of simple negligence in the breach of essential contractual obligations, liability is limited in any case to the amount of the remuneration payable in the course of one year.
The foregoing limitations of liability also apply in the event of claims for damages by the customer against the employees, representatives or officers of the provider.
The customer must take all necessary and reasonable measures to prevent or limit damages, in particular ensuring regular data backups as part of an appropriate backup strategy. The provider assumes no responsibility for malfunctions or impairments of any kind caused by the cloud infrastructure underlying the service, unless the provider is responsible for these in a specific case.
Further or other claims for damages against the provider beyond those regulated in this clause 15 are excluded, insofar as this is permissible under the law applicable to this contract.
The provider is not liable, in particular, for damages caused by errors in Microsoft software products. The same applies to damages caused by errors in other third-party software used.
16. Term / Termination
Unless otherwise agreed, the contract begins as soon as the customer confirms the offer and runs for an indefinite period. The contract may be terminated by either party with one month's notice to the end of the month. Termination must be declared in writing. If the customer has commissioned the provider to develop a customized report or similar services, and the project is not yet completed at the time of termination by the customer, the provider will cease work on the project and invoice for the hours already worked towards its completion at the time of termination.
The right to terminate the contract for good cause remains unaffected. One reason for such termination is, for example, a breach of a material obligation under the contract.
Furthermore, the provider may immediately suspend access to the service if the provider has reasonable grounds to suspect that:
the use could pose a risk to the service, the provider and/or a third party;
the customer's use of the service could be unlawful;
the customer is insolvent or over-indebted, or is threatened with insolvency;
If the provider suspends the customer's access to the service or parts thereof for the reasons stated in this clause, the customer remains responsible for all fees and charges incurred during the suspension. The customer is not entitled to a credit or refund in this respect.
After the contract ends, the provider is not obliged to continue storing any customer data contained in the database.
17. Force Majeure
Neither party shall be responsible for any delay or failure to perform any obligation under this contract if such delay or failure is caused directly or indirectly by an event beyond the reasonable control of the affected party.
This applies in particular to strikes, epidemics, floods, accidents, earthquakes, hurricanes, riots, civil unrest, terrorist acts, armed conflicts, blockades, embargoes, or other events of force majeure (hereinafter referred to as the “Impediment”). The affected party shall notify the other party in writing within ten (10) days of the occurrence of such an Impediment.
If the fulfillment of either party's obligations is delayed by more than thirty (30) days from the date on which the other party received the notice, either party is entitled to terminate the agreement immediately.
As soon as there is no longer an impediment, the parties shall resume performance of the contract without delay, unless it has been terminated.
18. General Provisions
This contract, as defined in clause 1, fully reflects the agreements between the parties regarding the subject matter of the contract. No supplementary agreements to this contract exist. Amendments and additions to this contract must be in writing to be effective.
The customer may only assert rights of set-off and retention on the basis of counterclaims that have been legally established or acknowledged by the provider.
The customer may not assign the contract or the rights or obligations granted to him therein without the prior written consent of the provider, which may not be unreasonably refused or delayed.
The customer agrees that the provider may use the data provided by the customer in anonymized form, which excludes any conclusions about the customer, for statistical evaluations and benchmark reports.
The customer agrees that the provider may use them as a customer reference by displaying the company logo on the website and other marketing materials.
The invalidity of one or more provisions of this agreement shall not affect the validity of the remaining provisions. The contracting parties shall replace any invalid provision with a provision that most closely approximates the intended economic purpose in a legally permissible manner; until such replacement, such a provision shall be deemed agreed upon. The same shall apply in the event of a gap in this agreement requiring regulation.
The customer's general terms and conditions do not apply. This also applies even if these terms and conditions are not expressly rejected. The contract is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and private international law. The exclusive place of jurisdiction for claims between the provider and the customer arising from the contract or the use of the service is Hamburg, Germany.
These terms and conditions are available in German and English. In case of discrepancies, the German version shall prevail.
As of October 1, 2024
