General Terms and Conditions
‍

1. Introduction and scope of application
‍
‍These General Terms and Conditions (GTC) apply to all Customers of the Software as a Service (SaaS) services (hereinafter referred to as "Service") and the consulting services of loyos bi GmbH (hereinafter referred to as "Provider"; Provider and Customer are jointly referred to as "Contractual Partners"). By signing the offer, or alternatively, if there is no signed offer, by commencing the execution of the contract by the client, e.g. by sending data, the client accepts these GTC. The offer, these GTC and the descriptions of the services on the Provider's website together form the contract.  

The person acting on behalf of the Customer declares that he/she is authorised to conclude this contract with legal effect for the Customer and that he/she agrees to the validity of this contract.

The Provider reserves the right to amend these GTC with effect for the future if this is necessary for valid reasons. Valid reasons exist in particular if the changes become necessary due to an adaptation to changed legal requirements, changes in supreme court rulings or due to technical developments, in particular to improve IT security. The Provider shall inform the Customer in text form (e.g. by e-mail) of any significant changes to the GTC at least four weeks before they come into force. The Customer has the right to object to the amendment within one month of receiving notification of the amendment. If no objection is made, the amended GTC shall be deemed accepted. The Provider shall point out the significance of silence in the notification of change. The current GTC are available at https://www.loyos-bi.de

2. Subject matter of the contract / scope of Services

The subject of the contract is the temporary use of the Service as specified below as well as the installation of the Service and the consulting services provided by the Provider.  

‍The Provider provides the Customer with browser-based reporting solutions based on the Microsoft Power BI platform. The Provider is responsible for providing the necessary guest access and licences. The Customer can access the service via a standard web browser. The Customer is aware that the Provider will gain access to the Customer's data in the course of executing the contract. Regulations in this regard can be found in particular in sections 13 (Confidentiality) and 14 (Data protection) of these GTC.

The Service contains standard reports provided by the Provider. The design, number and content of these standard reports are continuously developed and adapted by the Provider. The Provider always endeavours to implement further developments in consultation with the users and Customers, whereby the decision on the design and selection of the reports contained lies with the Provider.  In addition, customised reports can be developed and provided for the Customer. If this has not already been included in the offer, a separate order must be placed by the Customer. If the separate remuneration for the development of the customised solution has not been quantified, the Provider shall invoice the service on an hourly basis in accordance with Section 5 at the hourly rate specified in the price list for the customised set-up.

The format in which the data is provided by the Customer is defined during the set-up of the service. The import of the current data can then be initiated by the Customer themselves. If the format of the data changes, the interface for importing the data may have to be adapted accordingly. The Provider will then charge separately for the work involved.    

Updating the data, i.e. the time between the initiation of the update by the Customer and the display in the Service, can take up to two (2) hours or longer in exceptional cases. This depends on the volume of data and the current utilisation of the Microsoft servers (depending on the time of day). However, the update usually takes a few minutes.  

If the Customer requires support in using the Service, he can contact the Provider by telephone on +49 (0)451 160 860 30. This will be charged in accordance with Section 5, unless the support is due to technical faults or malfunctions of the software. Availability by telephone is guaranteed during service hours (Monday to Friday between 9 a.m. and 5 p.m.) (excluding regional public holidays). In addition, enquiries can be sent to the support@loyos-bi.de e-mail address at any time. A response, either by telephone or e-mail, will be provided within a maximum of 24 hours, whereby only the hours within the regular service hours are counted. Beyond this, the Provider shall provide support in accordance with the provisions in Clause 4

User administration, i.e. the creation of users and the allocation of authorisations, is carried out by the Provider on the basis of the Customer's written specifications.  If the Customer wishes to add additional products and/or functions to the Service, this will be agreed for a separate fee.  In all other respects, the Provider shall provide the Customer with the agreed Service as described on the website.  


3. Changes to the scope of the Service

The Provider is authorised to update the Service or change it in another form, provided that the change is reasonable for the Customer, taking into account the interests of the Provider. In particular, all changes that do not affect the essential scope of performance of the Service or are required for reasons of IT security or due to changes in the legal framework are deemed reasonable. If Microsoft Power BI updates require adjustments to the Service, the Provider shall implement these as soon as possible after becoming aware of the necessity.  

In the event of changes that affect the essential scope of the Service, the Provider shall inform the Customer of the impending changes with a reasonable period of notice in advance.

4. Availability and support  

The Provider shall provide the Service with an availability of at least 98% on an annual average (hereinafter "minimum availability").

The following are not considered downtime periods when determining the achievement of minimum availability:
- failures due to factors beyond the reasonable control of the Provider, such as natural disasters, war, acts of terrorism, riots, government measures or failures of the general network infrastructure,
- Network or equipment failures at the Customer's site or between the Customer's site and the components used to provide the Service; and
- Regular maintenance work, release updates and emergency maintenance.  

Support can be contacted by e-mail at support@loyos-bi.de and by telephone on +49 (0)451 160 860 30.  

The scope of support essentially comprises the following components:
- Support for the Customer in the event of problems when using the Service,
- Acceptance, classification and, if necessary, forwarding of fault messages and
- Localisation of the cause of the fault, fault diagnosis and services aimed at rectifying the fault within a reasonable time frame.


5. Remuneration

‍The applicable ongoing fee for the service (hereinafter referred to as the "Service fee") and the costs for the one-off set-up depend on the agreed scope of services and the details set out in the offer. The one-off standard set-up will be invoiced immediately upon signing the contract. The individual set-up costs 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 results shown, which are based on the fact that the database delivered by the Customer is incomplete or incorrect, do not prevent the due date from being reached. If the app is activated after the 20th day of a calendar month, the monthly service fee will only be charged from the following month. The invoice will be issued monthly at the end of the month.    

Telephone support or other services that do not relate to a technical error in the Service will be invoiced separately. The Provider is not obliged to separately point out the costs incurred before providing the services. Billing is on a quarter-hour basis. The Customer shall receive detailed documentation of the expenses invoiced in each case. Unless otherwise agreed, the hourly rate stated in the price list for the individual set-up shall apply. Invoices shall always be issued by the end of the month in which the service was provided at the latest.

Invoices are payable net within 14 days of receipt of invoice. All prices are net excluding the currently applicable VAT.

6. Obligations of the Customer to co-operate

‍The Customer shall provide the Provider with the names and company e-mail addresses of the persons who are to be set up as users. The Customer shall obtain the necessary consent from the named persons. If a user is to be deleted, the Customer is obliged to inform the Provider of this.  

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 ticking the corresponding checkbox. Guest access cannot be used without this declaration. A user is always personal and the use of a user by more than one person is not permitted.

The Customer is obliged to use an up-to-date, common web browser to use the services. The Provider is not liable for any restrictions caused by outdated browsers.

7. Behavioural obligations of the Customer

Users may not disclose their user name, password or other login information to unauthorised persons and must take reasonable precautions to keep them secret.

The Customer must point out this obligation to the persons he designates as users. The Customer is responsible for all activities that take place in their accounts. This applies regardless of whether they are carried out by the users named by him or by third parties. The Provider is not responsible for unauthorised access to the user account. The Customer must contact the Provider immediately if they become aware of any indications that unauthorised activities may have taken place in their account or if account information is lost or stolen.

8. Intellectual property and rights of use to data

All intellectual property rights to the Service shall remain exclusively with the Provider. The Customer shall only be entitled to use the Service insofar as this contract or any additional mandatory statutory provisions expressly provide for this.  

The Customer receives the non-exclusive right to access the Service as a service via the Internet and to use the Service in accordance with this contract. This authorisation is limited in time to the agreed period of use and in terms of content to that which is necessary for the contractual use of the Service or is mandatorily exempted by law.

There are no further rights of use. In particular, the Customer is not authorised to do the following with the Service or components thereof

- to make it accessible to third parties (“third parties” does not include users from affiliated companies or shareholders of the Customer); to reproduce, sell, modify, alter, manipulate or repair it or to create derivative works;
- to reverse engineer, disassemble or decompile the Service or to use other methods to derive the source code of the software underlying the Service;
- to use it in such a way that no fees are incurred or usage restrictions or quotas are exceeded;
- to use it by circumventing the security mechanisms used;
- or to carry out any activity that is harmful to third parties or otherwise unlawful.

The Customer shall ensure that data entered into the service does not violate this contract, applicable law or the intellectual property of a third party.

During the term of the contract, the Customer authorises the Provider to view and use the non-personal data that the Customer contributes to the Service or generates through the use of the Service free of charge, insofar as this is necessary for the provision and further development of the Service.  

9. Cloud infrastructure

With regard to its infrastructure components, the scope of use of the Service 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 infrastructures and the associated level of service. In particular, the use of the cloud infrastructure by the Customer is governed by the conditions agreed between the cloud provider and the Provider. The scope of services with regard to the underlying IT infrastructure is determined by the terms and conditions of the cloud provider. The corresponding licence terms and service levels are available at https://www.microsoft.com/en-us/licensing/product-licensing/products.

10. Third party rights  

The Provider assures that, to the best of its knowledge, the Service is free of third-party rights that may impair its use. Should third parties assert claims against the Customer, the Provider shall indemnify the Customer and take over the defence. Excluded from this indemnification are claims resulting from use in breach of contract, changes to the Service, unauthorised 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 (i) to inform the Provider immediately, at least in text form, of the assertion of such third-party rights, (ii) to grant the Provider the necessary powers of attorney and to allow the Provider to control the defence, and (iii) to cooperate in the defence. The conclusion of a settlement is only permitted with the consent of the Provider. This obligation applies accordingly in favour of the Provider if third parties assert claims against the Provider due to Customer content.  

In the event of existing third-party rights, the Provider may, at its own discretion, (i) acquire the necessary rights of use, (ii) adapt or replace the Service, or (iii) terminate the contract and refund the Customer the fee on a pro rata basis.

11. Liability for defects

‍The Provider is liable for ensuring that the Service essentially fulfils the functions described on the Provider's website and in the offer or otherwise expressly agreed between the Contractual Partners.

The Provider is neither liable for the accuracy of the data entered and issued nor for the decisions made on the basis of this data. The responsibility for regularly checking the accuracy of the data provided lies exclusively with the Customer.

The Provider accepts no liability for ensuring that the Service meets the Customer's specific needs.

12. Elimination of defects

‍If errors occur in the Service, the Provider will rectify these as quickly as possible and within reasonable limits.  

13. Confidentiality

‍The Contractual Partners are obliged not to disclose to third parties any confidential information (including business secrets) that they learn in connection with this contract and its implementation. Confidential information is information that is labelled as confidential or whose confidentiality arises from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form. Confidential information in the above sense does not include information that (i) was obvious or known to the Contractual Partners at the time of transmission or became so subsequently; (ii) was made available to the Contractual Partners without breach of law by third parties; or (iii) was developed by the Contractual Partners themselves without the use of confidential information.  

The confidentiality obligation shall not apply if the Contractual Partners are obliged to disclose the confidential information by law or on the basis of a final or legally binding decision by an authority or court. In this case, the Contractual Partners shall immediately inform each other of the obligation to disclose. Furthermore, in the course of the disclosure, the Contractual Partners shall make it clear that, if this is the case, it is a matter of business secrets and shall endeavour to ensure that the provisions of Sections 16 et seq. GeschGehG are utilised.  

14. Data protection

‍As part of the fulfilment of the contract, the Provider receives access to personal data from the Customer's area of control. This is an instruction-bound order processing by the Provider, to which the Data Processing Agreement applicable between the Contractual Partners applies. In particular, the Provider undertakes 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 required.  

If data is to be pseudonymised, this must be done by the Customer.

If personal data from companies other than the Customer are also made available to the Provider within the scope of this contract, in particular subsidiaries or affiliated companies of a group of companies, the Customer shall ensure that all necessary agreements have been made in relation to these other companies so that the provision of data complies with the currently valid data protection laws.  

15. Liability

The Provider shall be liable to the Customer in the event of intent, gross negligence, culpable injury to life, limb or health, defects which the Provider has fraudulently concealed or the absence of which it has guaranteed, as well as under the Product Liability Act.

In the event of a breach of material contractual obligations, the Provider shall also be liable for gross negligence and simple negligence, limited to the foreseeable damage typical for the contract at the time of conclusion of the contract.

In the event of simple negligent breach of material contractual obligations, liability is also limited to one times the amount of the remuneration to be paid in the course of a year.

The above limitations of liability shall also apply in the event of claims for damages by the Customer against the Provider's employees, representatives or bodies.

The Customer shall take all necessary and reasonable measures to prevent or limit damage; in particular, the Customer shall ensure that data is regularly backed up as part of an appropriate back-up concept. The Provider accepts no responsibility for malfunctions or impairments of any kind caused by the cloud infrastructure on which the Service is based, unless the Provider is responsible for these in individual cases.

Further claims for damages or claims for damages other than those regulated in this Section 15 against the Provider are excluded insofar as this is permissible under the law applicable to this contract.  

In particular, the Provider is not liable for damage caused by errors in Microsoft software products. The same applies to damage caused by errors in other third-party software used.  


16. Term / Cancellation

‍Unless otherwise agreed, the contract shall commence as soon as the Customer has confirmed the offer and shall run for an indefinite period. The contract can be cancelled by either party with one month's notice to the end of the month. The cancellation must be declared at least in text form. If the Customer has commissioned the Provider with the development of an individual report or similar services and the commissioned work has not yet been completed at the time of cancellation declared by the Customer, the Provider shall cease work on the commissioned work and invoice the hours that have already been performed for the execution of the commissioned work at the time of the cancellation.  

The right to terminate for good cause remains unaffected. One reason for such a cancellation is, for example, the 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 use of the Service by the Customer could be unlawful;
- the Customer is insolvent or overindebted 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 section, the Customer shall remain responsible for all fees and charges incurred during the suspension. In this respect, the Customer is not entitled to a credit note or refund.

The Provider is not obliged to continue to store any Customer data contained in the database after the end of the contract.  

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 party affected.  

This applies in particular to strikes, epidemics, floods, accidents, earthquakes, hurricanes, riots, civil unrest, acts of terrorism, armed conflicts, blockades, embargoes or other events of force majeure (hereinafter "Force Majeure"). The affected party shall inform the other party in text form within ten (10) days of the occurrence of such Force Majeure.

If the fulfilment of a party's obligations is delayed by more than thirty (30) days from the day on which the other party receives the notification, either party shall be entitled to terminate the contract immediately.  

As soon as there is no longer an event of Force Majeure, the parties shall immediately resume fulfilment of the contract, unless it has been terminated.

18. General provisions

This contract within the meaning of clause 1 fully reflects the agreements between the Contractual Partners with regard to the subject matter of the contract. There are no collateral agreements to this contract. Amendments and additions to this contract must be made in text form 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 recognised by the Provider.

The Customer may not assign the contract or the rights or obligations granted to it hereunder without the prior written consent of the Provider, which may not be unreasonably withheld or delayed.

The Customer agrees that the Provider may use the data made available to it by the Customer in anonymised form, which excludes any inference to the Customer, for statistical evaluations and benchmark reports.  

The Customer agrees that the Provider may use him 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 contract shall not affect the validity of the remaining provisions. The Contractual Partners shall replace an invalid provision with a provision that comes as close as possible to the economic intent of the invalid provision; until then, such a provision shall be deemed to have been agreed. The same applies in the event of a regulatory gap in this contract. The Customer's general terms and conditions shall not apply. This shall also apply if these terms and conditions are not expressly contradicted.  

The contract is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and private international law. The exclusive place of jurisdiction for claims between the Provider and the Customer based on the contract or the use of the Service is Hamburg, Germany.  

These GTC are available in German and English. In the event of contradictions, the German version shall take precedence.



Last Edit: 01.10.2024

‍