General Terms and Conditions (GTC) of CYQUEO GmbH
1. Subject of the Terms and Conditions
- 1.1 CYQUEO GmbH ("CYQUEO") enables the Contractual Partners ("Client") (I) through the Managed E-Mail Services ("Managed Services") to protect their e-mails and domains with regard to viruses ("Anti-Virus Service"), spam ("Anti-Spam Service") as well as archiving ("Archiving") by connecting their e-mail systems and domains ("System") to the Managed Services. For this purpose, CYQUEO cooperates with a technology supplier ("Technology Supplier") which operates and provides the Managed Services, (II) the delivery, operation and maintenance of hardware and software.
2. Scope of Application, Basic Principles
- 2.1 The following General Terms and Conditions ("GTC") of CYQUEO apply to all paid and unpaid services provided by CYQUEO to the Client.
- 2.2 The mutual rights and obligations of the parties are determined exclusively by the content of the order letter and these GTC. Information contained in catalogs, brochures, websites etc. is only authoritative if expressly referred to in the order confirmation.
- 2.3 A contract is concluded either (I) by an order confirmation on the part of CYQUEO or (II) by joint signing of an order form by the parties. -2.4 For the calculation of periods regarding minimum contract duration, period of a possible waiver of termination, etc., the start of the contract is considered to be the day of the first connection of the System with the Managed Services or the day according to the order confirmation.
- 2.5 Any conflicting GTC of the Client only applies if CYQUEO has expressly accepted them in writing. Verbal ancillary agreements. do not exist. Any amendments and supplements to these Terms and Conditions or to the contract concluded on the basis of these Terms and Conditions and the order letter must be made in writing. This also applies to the cancellation of the written form requirement as well as to the termination of the contract for any reason whatsoever.
- 2.6 The Technology Supplier owns the exclusive right to the brand names, service designations (trade and service marks), inventions, copyrights, trade secrets, patents and know-how used in connection with the Managed Services offered as well as all resources necessary to realize these service elements. The contractual relationship never includes an authorization for the use or transfer of even one of these elements by the Client.
3. Scope of Services
- 3.1 The scope of services results from the order form. Unless otherwise agreed, all appendices to the order form shall form an integral part of the contract and, in case of doubt, shall take precedence over these GTC. The license terms and SLAs of the technology supplier apply.
- 3.2 Should it become apparent in the course of the work that the execution of the order according to the order form is actually or legally impossible, CYQUEO is obliged to notify the Client of this, insofar it becomes aware of this. In this case, the parties will create the preconditions for an execution largely in accordance with the order.
- 3.3 Unless otherwise agreed, the contractual services will be performed by CYQUEO at the respective location of the technology supplier. Unless expressly agreed otherwise, CYQUEO is solely responsible for the selection of the employees and any subcontractors performing the contractual services. The Client has the right to reject subcontractors for good reasons.
- 3.4 Any dispatch of documentation and service descriptions will be made by CYQUEO GmbH.
- 3.5 The Managed Services are operated with the highest possible care, reliability and availability. CYQUEO is not liable for failures which are not within the sphere of responsibility of CYQUEO. The continuous availability of the transmission paths and therefore of the Managed Services depending thereon cannot be guaranteed and is beyond the sphere of influence of CYQUEO. CYQUEO reserves the right to further restrictions due to capacity limits of the technology supplier. In case of force majeure, strikes, restrictions of the services of other network operators or in case of repair and maintenance work, the provision of the Managed Service may be restricted. CYQUEO is not liable for such failures, unless they were caused by it, in which case the limitations of liability pursuant to clause 8 will apply.
4. Duties and obligations of the client
- 4.1 The Client will provide CYQUEO with all technical data as well as any other information required for the proper connection of the System to the Managed Services as well as the provision of the Managed Services. Likewise, the Client will immediately notify CYQUEO of any changes to the aforementioned data. Any information provided by the Client to CYQUEO is complete, accurate and given in good faith, and the provision of clause 9 applies to such information.
- 4.2 The Client undertakes to fully indemnify and hold CYQUEO harmless in the event that the latter is held liable under civil or criminal law, in court or out of court, due to content placed on the market by the Client, in particular by private lawsuits for defamation, insult or credit damage, by proceedings under the Media Act, the Copyright Act, the Trademark Act, the Unfair Competition Act or due to civil law defamation and/or credit damage.
- 4.3 The use of the Managed Services by third parties and the resale, subletting or licensing of the Managed Services by the Customer to third parties is prohibited. Subsidiaries with at least 51% equity participation are exempt from this.
- 4.4 The Client is obliged to keep his passwords secret. The Client is liable for any damage caused by insufficient secrecy of the passwords by the Client or by disclosure of the passwords to third parties.
- 4.5 The Client must ensure that the e-mail servers of the System are not configured in such a way that they forward e-mails received from unknown or unauthorized third parties to one or more recipients who are not users of the System ("Open Server, Open Relay"). In order to prevent any risk to the Client as well as to other users of the Managed Services, the Client agrees that the System may be tested by the Technology Supplier and/or CYQUEO, at their free discretion, either prior to connecting the System to the Managed Services or at any time during ongoing service provision, to determine whether it has Open Servers. In case the System has open servers, CYQUEO will notify the Client thereof, reserving the right to immediately interrupt the provision of the Managed Services until such time as the open server is removed/reconfigured.
- 4.6 The Client will further refrain from endangering the Managed Services by misuse of its system (e.g., by hacking attempts, mail bombs, spam) by the Client, persons attributable to him or third parties. Otherwise CYQUEO is entitled to interrupt the provision of the Managed Services with immediate effect and with simultaneous notification of the Client until such time as the aforementioned activities emanating from the system have ceased.
- 4.7 The Client acknowledges that information sent by or received from the Client’s system passes through the Managed Services and the Client therefore warrants that he will not use the Managed Services for prohibited purposes but only for recognized business purposes and will comply with any applicable laws and regulations regarding the use of the internet; to indemnify and hold harmless CYQUEO with respect to any third party claims arising from the flow of the Client’s information through the Managed Services.
- 4.8 The Client is obliged to notify CYQUEO of any increase of the number of Registered Users specified in the Order Form. Irrespective thereof, CYQUEO is permitted to monitor the actual number of users of the Managed Services. In case of an additional use of the Managed Services by the Client, CYQUEO is entitled to invoice the Client for such additional use in accordance with the underlying order.
5.5 Fee, Payment
- 5.1 Unless expressly stated otherwise, all prices are to be understood in Euro exclusive of value added tax.
- 5.2 Invoices and partial invoices issued by CYQUEO are due for payment including value added tax within 30 days upon receipt of the invoice without any deductions, unless otherwise agreed, and are to be transferred exclusively to the account specified in the invoice. The settlement dates are specified in the order form. Purchase prices and license fees are due upon delivery according to the invoice.
- 5.3 In case of default in payment, CYQUEO is entitled to charge all necessary and appropriate costs arising therefrom, including costs for the intervention of collection agencies and lawyers, as well as default interest in the amount of 8% p.a. from the day of default. This shall not affect the assertion of further damage caused by default.
- 5.4 Any set-off against the claims of CYQUEO with counterclaims of the Client as well as any withholding of payments on the basis of alleged claims of the Client not acknowledged by CYQUEO is excluded.
- 5.5 Claims against CYQUEO may not be assigned in the absence of express written consent.
- 5.6 All delivered goods remain the property of CYQUEO until final payment.
6. Contract Duration
- 6.1 The minimum term of the Managed Service Agreement is 12 months, starting with the setup of the Service by CYQUEO. The contract may be terminated with a notice period of 3 months to the end of the term. The contract is extended by another 12 months each time if it has not been terminated with a notice period of 3 months to the end of the term.
- 6.2 A termination by both CYQUEO as well as by the Client can take place subject to a notice period of 3 months in each case as of the termination dates specified in the order form, but for the first time after the expiry of the term of the contract specified in clause 6.1, with the date of the postmark being decisive for compliance with the notice period. In the event that no termination dates have been agreed in the order form, termination is possible by CYQUEO as well as by the Client, in each case subject to a notice period of 3 months to the expiry of the contract term.
- 6.3 Furthermore, CYQUEO is entitled to terminate the contractual relationship immediately if: insolvency proceedings are opened against the Client’s assets or bankruptcy proceedings are not initiated due to lack of assets; the Client fails to meet its payment obligations despite having been granted a grace period of 30 days, whereby CYQUEO is entitled to immediately interrupt the provision of the Managed Services in case of a delay in payment of more than 30 days; the Client breaches its duties and obligations pursuant to clause 4 despite having received a written reminder and having been granted a grace period of 14 days; or the technology supplier ceases to provide the Managed Service.
- 6.4 All cases of immediate termination of the contract, interruption or disconnection of the Managed Services for a reason attributable to the Client shall not affect CYQUEO’s claim to the remuneration until the next ordinary termination date and the assertion of claims for damages.
- 6.5 In case of purchase of a hardware including licenses (invoicing in advance), the term of the contract corresponds to the dates of the order form.
- 7.1 Warranties for assured properties only exist to the extent that CYQUEO has given an express written warranty with respect to a specific property of the Managed Services.
- 7.2 CYQUEO is responsible for defects of the Managed Services exclusively within the scope of this clause 7.
- 7.3 CYQUEO warrants to the Client within the scope of the "Anti-Virus Service" a virus infection protection with regard to viruses contained in e-mails that can be scanned by the "Anti-Virus Service" (e.g., e-mail attachments secured by password or encrypted cannot be scanned and are therefore excluded from this warranty). If a virus is identified in an e-mail and the e-mail cannot be stopped by the "Anti-Virus Service", CYQUEO will immediately inform the Client thereof so that the Client can identify and remove the infected e-mail. If the Client does not immediately take appropriate measures to remove the infected e-mail due to the notification by CYQUEO, the warranty referred to in paragraph 1 expires in this respect. If an infection of the system can be prevented due to a notification by CYQUEO, the warranty claims set forth below will not arise for the Client. The software used within the scope of the "Anti-Virus Service" as well as "Content Control" corresponds to the available state of the art in combating "Malicious Codes" as well as in content control and is operated with the greatest possible care. However, since no software for combating viruses and content control can achieve a detection level of 100%, CYQUEO does not assume any warranty that the software used performs a 100% correct identification of malicious codes and content control of unwanted content.
- 7.4 The software used in the context of the "Anti-Spam Service" corresponds to the available state of the art in combating spam and is operated with the greatest possible care. However, since no anti-spam software can achieve a detection level of 100%, CYQUEO does not warrant that the software used performs a 100% correct identification of spam. Also, e-mail attachments that are under the direct control of the sender (e.g., by password protection, encryption) as well as pornographic content embedded in documents cannot be scanned by the software used within the scope of the "Anti-Spam-Service" or the content control.
- 7.5 The warranty does not apply if the Client modifies the Managed Services himself or has them modified; in the event of damage, manipulation or destruction of data files caused by the settings of the Managed Services made by the Client himself; if e-mails infected with viruses are released at the request of the Client; if the defect is due to an omitted or incorrectly executed duty or obligation of the Client.
- 8.1 Any liability of CYQUEO for indirect damages, such as loss of profit, loss of savings, consequential harm caused by a defect, loss of data, claims of third parties against the Client, access of third parties to the system as well as for damages, the occurrence of which was not typically foreseeable at the time of the conclusion of the contract, is excluded, irrespective of the legal ground, with the exception of cases of gross negligence and intent.
- 8.2 In no case, however, can any remaining liability under this provision exceed the amount of the order sum of the 2 months preceding the damage event.
- 8.3 In the event of a loss of data or programs for which CYQUEO is responsible, CYQUEO is only liable to the extent of the recovery expenses incurred, provided that the Client has performed data backups on a regular basis, in any case, however, every 24 hours, and has thus ensured that lost data can be recovered with reasonable effort.
- 8.4 Liability shall not apply if the Client interferes with the Managed Services itself or has such interference carried out; in the event of damage, manipulation or destruction of data stocks caused by the settings of the Managed Services made by the Client himself; if e-mails infected with viruses are released at the request of the Client; if the damage is due to an omitted or incorrectly executed duty or obligation of the Client.
- 8.5 All claims (including, in particular, those under clause 7) against CYQUEO become in principle time-barred after one year from the respective statutory start of the limitation period. Claims for damages against CYQUEO become statute-barred after five years irrespective of knowledge. However, with regard to claims of the Client based on an intentional or grossly negligent breach of duty by CYQUEO, the statutory periods apply.
- 8.6 The Client is obliged to indemnify and hold CYQUEO or the technology supplier harmless from and against any claims of its employees or third parties arising from faulty delivery or non-delivery of e-mails containing viruses, unwanted content or spam.
9. Data Protection, Secrecy
- 9.1 CYQUEO will ensure that its employees comply with the provisions of the Data Protection Act.
- 9.2 Both Parties undertake to keep confidential all information obtained from one of the Parties or from IT systems or other documents of one Party in the course of the performance of the Order, unless the other Party releases CYQUEO from this obligation in writing in a specific case or the information is not publicly known. Furthermore, in the event that the Parties were able to use other persons to provide their services, the Parties undertake, in the event that they are otherwise liable for damages, to waive in writing this obligation of confidentiality also to all other persons used by them to provide the service. Both parties will comply with all legal obligations of confidentiality and will only use such employees and vicarious agents who have been expressly obligated in writing to maintain confidentiality. For documents separately marked as "confidential" or equivalent, the parties will comply with the respective announced security standards.
10. Final Provisions
- 10.1 Should one or more provisions of these GTC or of the contracts concluded on the basis thereof prove to be wholly or partially invalid or should a regulatory gap arise, the validity of the remaining provisions of the GTC or of the contracts concluded on the basis thereof shall not be affected. Both contracting parties are obliged to agree on an effective provision that comes as close as possible to the intended content of the agreement in place of the ineffective provision or to fill the gap in the provision.
- 10.2 All notifications and declarations of the Client to CYQUEO relating to this contractual relationship must be made in writing, whereby an e-mail will expressly suffice the written form.
- 10.3 Documents and declarations of the parties are deemed to have been received by the other party if they have been sent to his last known address or e-mail address.
- 10.4 The present GTC and the contracts concluded on the basis thereof shall be governed by German law.
- 10.5 All legal disputes arising from the present General Terms and Conditions as well as from the contracts concluded on their basis, including the question of their conclusion, validity, dissolution or nullity, are subject to the exclusive jurisdiction of the court having subject-matter jurisdiction in commercial matters for Munich.