User: COYO GmbH, Gasstraße 6a, 22761 Hamburg (hereinafter referred to as "COYO")
(1) The subject matter of this contract is the provision of the software COYO in the variants COYO Cloud and COYO Private Cloud (hereinafter referred to as "software") for the use of its functionalities and the granting or mediation of usage rights to the software by COYO to the customer against payment of the agreed fee.
(2) The source code of the software is not an object of this contract.
(3) The service description valid at the time of conclusion of the contract and available to the customer prior to conclusion of the contract, which is also described once again in the application documentation (docs.coyoapp.com), is definitively decisive for the quality of the software and infrastructure provided by COYO. COYO shall not be liable for characteristics of the software going beyond this aspect. In particular, the customer cannot derive such an obligation from other representations of the software in public statements or in the advertising of COYO, as well as its employees or sales partners, unless COYO has expressly confirmed the further characteristic in writing.
(4) As far as employees of COYO give guarantees before conclusion of contract, these are only effective if they are confirmed in writing by COYO management.
(1) The software is made available to the customer via Internet access. It is not installed on the server or on individual workstations of the customer, but instead only uses an Internet browser or a mobile device via so-called apps.
(2) For this purpose, COYO holds available the software in the current version for use by the customer on special, highly available IT systems (hereinafter referred to as "servers") from the agreed date.
(3) After the conclusion of this contract, COYO will provide a web address (URL) to the customer under which the customer can set up his own access to the software and then administer the same.
(4) From the agreed time of provision, COYO will also make the agreed amount of storage space available on its servers for the data generated by the customer when using the software (hereinafter referred to as "usage data").
(5) This usage data is backed up on the servers regularly, at least every calendar day. The customer is responsible for compliance with the relevant retention periods under commercial and tax law.
(6) The transfer time for the software corresponds to the router output of COYO's data center. COYO must provide the name of the respective data center upon request.
(7) COYO is not responsible for the quality of the hardware and software required by the customer or for the telecommunication connection between the customer and COYO up to the delivery point.
(8) COYO will deliver the contractual services with an availability which is regulated in the COYO Service Level Agreement.
(1) In the full version COYO grants the customer the non-exclusive rights of use necessary for the use of server and software including add-ons selected by the customer, limited in time to the term of this contract, but unlimited by place. If COYO grants the customer rights of use to software developed by a third party, then the scope of the rights of use granted to the customer is limited to that of the rights granted to COYO by the third party. In this case, COYO is obliged to disclose to the customer the scope of the rights of use granted to him by the respective third party.
(2) The right to use the test license (trail version) is also granted non-exclusively and unlimited by place, however is limited to a period of 4 weeks from the first access to the servers. After this period the license will expire and access to the software will be blocked using technical means until the license code for the full version is entered. If this does not happen within a term of 4 weeks after the expiry of the test license, then the data recorded by the customer will be deleted.
(3) The licenses are granted under the so-called named user model. In line with this, the offer specifies the maximum number of authorized users who may access the software via a registered access as per a list of names.
(4) A claim for processing of the software is only given as far as this is necessary for the elimination of errors. However, the prerequisite is that COYO a. is in default with the correction of the error, b. declines to correct the error or c. is unable to correct the error. The right to disabling according to Sect. 69e UrhG (German copyright law) remains unaffected in both cases (duplication and alteration) under the conditions described therein.
(1) The customer pays a fee for the use of the server and software, whose amount depends on the content of the offer. The prices there are exclusive of VAT, currently 19%.
(2) The due date for payment shall commence on the invoice date unless specified otherwise within the offer.
(3) In the event of default of payment, the customer is obliged to pay COYO interest to the amount of 8 percentage points above the base interest rate. COYO may also demand higher interest for another legal reason. COYO’s right to assert claims for further damages remains unaffected.
(4) COYO can change these terms of use and/or fees. The changes shall only become effective vis-à-vis the customer if they have been notified to him in writing or by e-mail and the customer has not objected to them in writing or by e-mail within one month of receipt of the notification. If the customer exercises his right of objection, the contract will be continued in line with the previous terms of use and fees. The timely sending off of said notification shall be sufficient to meet the deadline. COYO’s notification will point out to the customer the special importance of a neglected timely objection. If the terms of use and/or fees are changed to the disadvantage of the customer and the customer exercises his above right of objection, the following shall apply: If, in response to the customer’s objection, COYO informs the customer that a continuation of the contract to the previous terms of use and/or fees is not possible, then the customer can terminate the contractual relationship at the time the change becomes effective. The amended terms and conditions shall be deemed approved if the customer does not exercise his right of termination within one month of receipt of the notification. COYO’s notification will point out to the customer the importance of failure to exercise his right of termination.
(5) COYO is entitled (but not obliged) to use more powerful software than the software specified on conclusion of this contract. If this extension or improvement involves an increase in the monthly remuneration, the provisions of Section 4 (4) shall apply.
(1) The customer has familiarized himself with the essential functional features of the software on the COYO website and bears the risk whether this software corresponds to his wishes and needs.
(2) The customer shall make appropriate arrangements for the event that the entire software or parts thereof do not function at all or only in part (e.g. daily backup, fault diagnosis, regular checking of the data processing results).
(3) Unless the customer explicitly points out the contrary in advance, COYO may assume that all customer data with which COYO could come into contact has been secured. The software provides for appropriate technical possibilities for data backup.
(4) The customer bears all disadvantages and additional costs arising from a breach of these obligations.
(1) The customer is not entitled to make the software available to third parties (i.e. persons other than his own employees) for their own use. The customer is expressly forbidden to sublet the software. He undertakes to design his contractual relationships with third parties in such a way that a free-of-charge use of the software is excluded. This does not apply to third parties who have been invited to the system by the customer for the purpose of joint cooperation without being granted administrator rights.
(2) As far as actions of the customer (as well as his employees) or user data provided by him or his employees violate legal regulations or rights of third parties (such as copyrights), the customer completely exempts COYO from any liability and will reimburse COYO for all resulting costs (in particular-attorney's fees). In this context, it is agreed that COYO is not obliged to check the data transmitted by the customer's systems for possible legal infringements.
(1) The customer is familiar with the software and its performance. The software has been developed with scientific care and according to the recognized rules of technology, in particular recognized programming rules, in mind.
(2) If the functions of the software deviate from those contractually determined and/or if the software is shown to be defective, the customer must report this immediately in writing. COYO will then remedy the defects, if necessary by using third parties. Claims to damage remain unaffected.
(3) A withdrawal from the contract or a right to extraordinary termination shall only be considered if the continuation of the contractual relationship is unreasonable or a not insignificant breach of contractual duty continues despite a warning or setting of a deadline. A warning letter is not necessary if the breach of contract is so serious that a warning letter does not appear suitable to end the breach of duty and/or to restore confidence. Before such a termination of the contract, COYO will generally be entitled to two attempts to remedy the respective defect.
(4) The customer is aware that COYO does not operate its own network and does not provide the customer with Internet access. For this reason, COYO assumes no responsibility for the functionality of the respective access to the Internet.
(5) In all other respects, the statutory warranty claims shall apply.
(1) COYO will handle the maintenance of the software and its support within the scope of the service packages COYO Cloud and COYO Private Cloud.
(2) The concrete service obligations for maintenance and support result from the COYO Service Level Agreement, which was attached to the offer together with these terms of use.
(1) In all cases of contractual and non-contractual liability, COYO shall pay damages exclusively within the following limits:
a) in the case of intent to the full amount, also in the absence of a characteristic for which COYO has assumed a guarantee;
b) in the case of gross negligence only to the amount of the foreseeable damage which should have been prevented by the breached obligation;
c) in other cases: only for breach of an essential contractual obligation if the purpose of the contract is endangered, but always only to the amount of the foreseeable damage;
d) over and above this, insofar as COYO is insured against the damages incurred, within the scope of insurance coverage and conditional upon the insurance payment.
(2) The limitations of liability according to (1) above shall not apply to liability for personal injury and liability under the Produkthaftungsgesetz (German Product Liability Act).
(3) COYO has the right to object on the grounds of contributory negligence.
(1) The contract is concluded for a period of time whose length depends on the contents of the offer. If no specifications have been made there, a fixed term of one year will be deemed agreed. The contract will be extended by the same period of time in each case if it has not been terminated in writing three months prior to the end of the period of duration. The right to extraordinary termination shall remain unaffected.
(2) At the end of the period of duration or should the contract be terminated for other reasons COYO will provide the customer with the data in written or text form on suitable storage media on request.
(1) Within the scope of the contractual purpose, it is necessary that the customer discloses data, information etc. to COYO in which the customer has an interest in secrecy as the transmitting contracting party.
(2) In order to enable a corresponding transfer of information and data, the confidential treatment of information, data etc. transmitted or otherwise made accessible by the customer is ensured. The following has been agreed:
COYO undertakes to maintain strictest secrecy about all confidential processes, especially business or trade secrets of the customer, which have come to its knowledge during the preparation, execution and fulfilment of this contract and neither to pass them on nor to use them in any other way.
This applies to any unauthorized third parties, i.e. also to unauthorized employees of COYO as well as the customer, if the passing on of information is not necessary for the proper fulfilment of COYO's contractual obligations.
(3) The parties will observe the statutory provisions on data protection, in particular the Telemediengesetz (German Telemedia Act), the Bundesdatenschutzgesetz (German Federal Data Protection Act) and the EU General Data Protection Regulation (GDPR). Thus, the customer will oblige his employees employed in connection with the contract and its implementation to data secrecy, insofar as they have not been already obligated.
(4) If the customer processes personal data, he is responsible for the fact that he is entitled to it, in particular according to the applicable data protection regulations, and exempts COYO from claims of third parties in case of any violation. As far as the data to be processed are personal data, then contract data processing is taking place and COYO will observe the legal requirements regarding contract data processing and the customer’s instructions (e.g. for the compliance with deletion and blocking obligations). Instructions must be given in good time and at least in text form.
(5) COYO takes the technical and organizational security precautions and measures according to Art. 32 EU GDPR. In particular, COYO protects the services and systems to which it has access as well as the user data of or concerning the customer that is stored on the server and, if necessary, other data against unauthorized knowledge, storage, change or other unauthorized access or attacks - whether carried out using technical measures, viruses or other harmful programs or data or by means of physical access – carried out by COYO employees or third parties, no matter by which means these take place. In order to do this, COYO shall take appropriate, recognized measures by using the latest proven technology, especially for protection against viruses and other malicious programs or programming routines, as well as other measures to protect its establishment including protection against burglary.
(6) COYO will collect and use customer-related data only to the extent required for the execution of this contract. The customer agrees to the collection and use of such data to this extent.
(7) The obligations under Para. 3 to 6 apply as long as user data are within COYO's sphere of influence, even after the end of this contract. The obligation under Para. 6 also exists for an indefinite period beyond the end of the contract.
(8) The software is hosted exclusively on German servers.
Access to the server may be blocked if the customer is in arrears with the payment obligation of at least two months and any security provided has been used up. Blocking is also possible if a. COYO equipment is at risk- especially the switching system (e.g. due to feedback effects from end devices) - or public security is threatened. b. the customer uses servers and/or software for illegal purposes (e.g. storage of copyright infringing contents) or c. the customer otherwise gives cause for termination of the contract without notice.
(1) Exclusive place of jurisdiction for all disputes arising from and in connection with this contract is COYO's place of business. If COYO sues, then it is also entitled to choose the place of jurisdiction at the customer’s place of business. This shall not affect the rights of both parties to seek interim relief before any court that has jurisdiction pursuant to the law.
(2) German law applies exclusively; the UN Sales Convention (CISG) is excluded.
(3) The conclusion of the contract as well as subsequent amendments and supplements to the contract must be made in writing to be effective. The same applies to the amendment of this clause. No verbal collateral agreements have been made. All declarations of the parties must be made in writing to become effective.
(4) If any provision of this contract is or becomes invalid or if it contains an inadmissible deadline or a loophole, then the validity of the remaining provisions shall remain unaffected. If the invalidity does not result from a violation of Sect. 305 ff. BGB (German Civil Code) (Validity of General Terms and Conditions), then an effective provision which comes as close as possible to the economic intention of the parties shall be deemed agreed instead of the invalid provision. The same applies in the case of a loophole or omission. In the event of an unacceptable deadline, the legally permissible measure shall apply.
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