General Terms and Conditions of AYYA Advisory AG
Valid as of: July 2024
1. Scope / Binding Period
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") apply to business relationships between AYYA Advisory AG, Städtli 3, 9470 Werdenberg (hereinafter referred to as "AYYA Advisory AG") and its customers.
1.2 AYYA Advisory AG offers various IT services to customers. Depending on the specifically agreed services, Special Contract Terms (hereinafter referred to as "SCT") apply in addition to these GTC. These GTC and the SCT are available online at https://www.ayya.ch/agb. In case of contradictions, the SCT take precedence over these GTC.
1.3 The content of the contract is always based on the offer/order/contract documents agreed between AYYA Advisory AG and the customer (hereinafter collectively referred to as "Offer"). In case of contradictions between the Offer (including any attachments) and the GTC / SCT, the Offer takes precedence. Other documents referenced in the GTC / SCT are applied subordinately to this.
1.4 General terms and conditions / purchasing conditions of the customer do not become part of the contract in place of or in addition to these GTC, unless AYYA Advisory AG expressly confirms this in writing to the customer as part of the conclusion of the contract; text form is excluded. The customer is aware that the commencement of service provision by AYYA Advisory AG is under no circumstances to be understood as acceptance of the customer's general terms and conditions / purchasing conditions.
1.5 AYYA Advisory AG reserves the right to change these GTC at any time. The customer will be informed in writing about the changes six weeks before they come into effect. As part of this information, the customer will be provided with the new GTC. The customer has the right to object to the validity of the new GTC within four weeks of receiving this notification. If the customer does not object, the amended GTC will become part of the contract after the six-week period has expired.
1.6 If the adjustment of the GTC leads to a significant change for the customer regarding the services, the customer can terminate the contract within 30 days at the end of the month and, in the case of continuing obligations (ongoing services), will receive a pro-rata refund. Price changes for existing customers only take effect at the time of the next automatic contract renewal.
1.7 Offers from AYYA Advisory AG are always non-binding for customers; only the order / assignment by the customer represents a binding offer.
1.8 AYYA Advisory AG employs carefully selected own employees or third parties as subcontractors with the required qualifications to provide the services. AYYA Advisory AG is entitled at any time to replace its own employees or third parties used to provide the services with those of comparable qualification and experience. If these employees have been communicated to the customer by name, AYYA Advisory AG will inform the customer about the replacement.
1.9 The agreed remuneration only covers the scope of services documented in the offer. Agreed additional services will be charged separately based on the agreed prices. The prices stated in the price list of AYYA Advisory AG available at https://www.ayya.ch/preisliste are deemed to be agreed, unless the parties regulate different prices in the offer. If the service description in the offer contains unintentional gaps or ambiguities, AYYA Advisory AG is entitled to adjust the service description accordingly at its reasonable discretion.
2. General Obligations of the Customer
2.1 The customer acknowledges their obligations to cooperate (as stated in these GTC / the applicable SCT and, if applicable, additionally in the offer) as a prerequisite for the provision of services by AYYA Advisory AG and thus as their contractual obligations.
2.2 The customer shall designate in writing at least one contact person for AYYA Advisory AG and an address and e-mail address where the contact person's availability is ensured. The contact person must be able to make the necessary decisions for the customer or to bring them about immediately. The contact person ensures good cooperation with the contact person at AYYA Advisory AG.
2.3 The customer will immediately inform AYYA Advisory AG about changes to their communication data and, upon request from AYYA Advisory AG, confirm the current accuracy again within 14 days of receipt. This includes, in particular, name / company; managing director or board of directors, if the customer is a legal entity; address / registered office; telephone and e-mail.
2.4 If the customer fails to fulfill an obligation to cooperate, does not fulfill it properly, or fulfills it late, and AYYA Advisory AG is therefore unable to provide its services in accordance with the contract, AYYA Advisory AG is not responsible for any disadvantages arising for the customer. AYYA Advisory AG will charge the customer additionally for the additional expense caused by this, in particular for extended provision of the personnel or material resources used, at the agreed prices. Other rights of AYYA Advisory AG due to omitted or insufficient cooperation of the customer remain unaffected.
3. Prices and Payment Terms
3.1 All prices agreed in these GTC, the SCT and in our offers are net prices, to which the legally determined value-added tax is added. Prices, payment methods and types, as well as times for invoicing are specified in the offer.
3.2 If the remuneration is based on "person days" or similar, such a "day" corresponds to up to eight hours per person in the time from 08:00 to 17:00 on working days at the registered office of AYYA Advisory AG (Monday-Friday). AYYA Advisory AG charges for expenses per quarter hour started.
3.3 Invoices are payable within 14 days of receipt of the invoice. In case of doubt, invoices are deemed to have been received three working days after the invoice date. The granting of discounts is excluded. The customer's default occurs after the expiry of the payment deadline. Any bank charges incurred (especially for foreign payments) are borne by the customer. Invoices are deemed to have been approved by the customer if they have not been objected to in writing and objectively justified within 30 days of the invoice date.
3.4 AYYA Advisory AG sends invoices to the customer by e-mail. At the customer's request, invoices can be sent by post for an additional charge of CHF 2.00 per invoice.
3.5 AYYA Advisory AG may increase the monthly prices for recurring services in continuing obligations without the customer's consent a maximum of once per year at its reasonable discretion by up to 10% with effect for the future, but for the first time at the earliest four (4) months after the start of the contract term. A price increase for partial services is only possible if these have already been agreed for at least four (4) months. The price increase should only be made to cover increased costs. The customer bears the burden of proof that the price increase made by AYYA Advisory AG was not made for this purpose.
3.6 In the event of a price increase according to clause 3.5, the customer can terminate the current contract within four (4) weeks of receiving the written price increase notification with a notice period of six months to the end of the month. In this case, the previous fee will be charged until the end of the contract, i.e., the increase will not take effect. However, the customer's consent is deemed to have been given if the customer does not give notice of termination within this period. This presupposes that we have informed the customer of the consequences in the notification of change.
3.7 AYYA Advisory AG reserves the right to demand advance payment. This applies in particular to an order value of over CHF 500.00 net. AYYA Advisory AG further reserves the right to demand advance payments or security deposits if circumstances arise or become known that make claims appear endangered. If the customer does not comply with such a request within one (2) week, AYYA Advisory AG may withdraw from the contract or
3.8 AYYA Advisory AG can demand interest at a rate of nine (5) percentage points upon default.
3.9 The provision of services by AYYA Advisory AG in the context of continuing obligations is contingent on the customer meeting their payment obligations on time. If the customer
3.9.1 is in default of payment of the agreed prices for two consecutive months or the customer only makes a partial payment or
3.9.2 is in default of payment of the agreed prices for a period extending over more than two (2) months in an amount reaching the prices for two (2) months,
AYYA Advisory AG is entitled to
3.9.3 suspend its services until payment of the prices or
3.9.4 terminate the affected services or the entire contract without notice. In addition to the prices for the services provided up to the effective date of termination, AYYA Advisory AG is entitled to a compensation fee in the amount of the agreed prices for the period from termination to the end of the regular contract term.
3.10 Travel costs, expenses and other incidental costs as well as outlays incurred for the provision of the contractually owed services by AYYA Advisory AG will be charged to the customer additionally and according to expenditure, unless otherwise specified in the offer. Unless otherwise agreed in individual cases, AYYA Advisory AG charges for travel to customer locations with the flat rate agreed in the offer.
4. Liability
4.1 AYYA Advisory AG is liable without limitation for damages caused by gross negligence or intent by AYYA Advisory AG, its legal representatives or vicarious agents. AYYA Advisory AG is also liable without limitation for damages resulting from culpable injury to life, body or health.
4.2 Furthermore, liability for all cases of slight negligence is excluded.
4.3 In any case, AYYA Advisory AG's liability for indirect damages (including, in particular, damages caused by business interruption and restriction), lost profits, unrealized savings and damage to reputation is excluded.
4.4 The above limitations of liability also apply in favor of the legal representatives and employees of AYYA Advisory AG and also apply in the case of pre-contractual or tortious liability.
4.5 AYYA Advisory AG's liability for damages under the Product Liability Act remains unaffected.
4.6 Insofar as AYYA Advisory AG is not responsible for backing up the customer's data according to the offer, in the event of data loss, AYYA Advisory AG's liability is limited to the recovery effort that would have been incurred if the customer had properly backed up the data.
4.7 AYYA Advisory AG is not liable if the provision of the service is temporarily interrupted, completely or partially restricted or impossible due to force majeure. Force majeure includes, in particular, natural events of special intensity (avalanches, floods, landslides, etc.), warlike events, riots, epidemics, pandemics, unforeseeable official restrictions, etc. If AYYA Advisory AG cannot meet its contractual obligations, the performance of the service will be postponed according to the event that has occurred. AYYA Advisory AG is not liable for any damages incurred by the customer due to the postponement.
5. Confidentiality and Data Protection
5.1 The parties will keep confidential all information of the other party that comes to their knowledge in the course of the cooperation and requires confidentiality, i.e., protect it from unauthorized access with due care. Authorized in the sense of this regulation are the subcontractors used in accordance with the contract as well as employees of AYYA Advisory AG. The parties undertake to involve only those employees or third parties in the cooperation who have previously been obligated to maintain confidentiality in a comparable form.
5.2 Information requiring confidentiality includes all information of a party, regardless of its form, which is marked in writing as requiring confidentiality or whose need for confidentiality is clearly evident from its nature, in particular trade and business secrets. The terms of the offer are also subject to confidentiality.
5.3 Information that does not require confidentiality is information for which the receiving party can prove that it either (a) is or was generally accessible, (b) was already in the possession of the party without any obligation of confidentiality, (c) was developed independently and without the use of confidential information by another party, or (d) the information was legitimately acquired from a third party who was not obliged to maintain confidentiality.
5.4 AYYA Advisory AG will fulfill the agreed requirements of the customer regarding data protection and data security. Both parties will comply with the applicable data protection regulations, in particular those valid in Switzerland, and will obligate their employees used in connection with the contract to maintain data secrecy, insofar as they are not already generally obligated accordingly. Insofar as AYYA Advisory AG processes personal data in the course of providing its services under this agreement, AYYA Advisory AG will act exclusively on behalf of and on the instructions of the customer. The parties will conclude a separate written agreement on order processing for this purpose.
5.5 The confidentiality obligations continue for three years after the end of the respective contract.
6. Term and Termination
6.1 Unless otherwise stipulated in the offer, AYYA Advisory AG provides the agreed services within the framework of continuing obligations from the time of provision for an indefinite period, initially for the minimum contract term specified in the offer.
6.2 Notwithstanding any rights to ordinary termination of services, the right of both parties to terminate for good cause remains unaffected. If the reason for termination is a breach of a contractual obligation, the terminating party must set the other party a reasonable deadline to remedy the reason for termination before termination.
6.3 Terminations must be made in writing.
7. General Provisions
7.1 The parties may use each other's companies and brands publicly (especially on the company website or in brochures) as a reference. In addition, the customer has the opportunity to act as a reference customer for AYYA Advisory AG on the basis of a separate agreement.
7.2 The assignment of rights or obligations of the customer from the contract to third parties is excluded without the prior written consent of AYYA Advisory AG.
7.3 Offsetting by the customer is only possible with the consent of AYYA Advisory AG.
7.4 Changes and additions to the offer or the GTC / SCT must be made in writing. This also applies to a cancellation or waiver of the written form requirement.
7.5 If the written form is required according to the GTC / SCT, text form (e.g., messages by e-mail) is sufficient to comply with it, unless otherwise regulated in individual cases.
7.6 The legal relationship between the parties is subject exclusively to Swiss law, to the greatest extent possible excluding international conventions (for example, the UN Convention on Contracts for the International Sale of Goods), insofar as an exclusion is permissible and possible.
7.7 The exclusive place of jurisdiction is the registered office of AYYA Advisory AG.
Special Contract Terms (SCT) – Managed Services
to the General Terms and Conditions of AYYA Advisory AG
Valid as of: July 2024
1. Scope of Application
These Special Contract Terms (hereinafter referred to as "SCT") apply to all contracts of AYYA Advisory AG for the provision of "Managed Service" services. In addition, the General Terms and Conditions "GTC" of AYYA Advisory AG apply. These SCT as well as the GTC are available online at www.ayya.ch/agb. In case of contradictions, these SCT take precedence over the GTC.
2. Scope of Services
2.1 Subject to deviating agreements in the offer, AYYA Advisory AG provides the following services for the customer during the contract period:
2.1.1 Time-limited provision of hardware / standard software / data center capacities / cloud services (hereinafter collectively referred to as "Infrastructure");
2.1.2 Installation / commissioning of the Infrastructure, if agreed;
2.1.3 If applicable, monitoring and other operational/support services related to the Infrastructure as per the offer.
2.2 The scope of services in detail as well as any supplementary services by AYYA Advisory AG are described in more detail in the offer. The installation and commissioning of the cloud services and/or standard software is the responsibility of the customer, unless otherwise specified in the offer.
2.3 AYYA Advisory AG always performs operational/support services within the framework of Managed Service services during the service times specified in the offer / price list. Unless otherwise agreed in the offer, the customer is not entitled to AYYA Advisory AG working outside the service times, even for the installation of updates. AYYA Advisory AG may provide these services outside the service times at its own discretion and charge the notified surcharges for this.
2.4 The services provided under these SCT - apart from the service component of the time-limited provision of the Infrastructure - constitute services, i.e., AYYA Advisory AG owes only the activity, not the success intended by the customer, unless AYYA Advisory AG has contractually guaranteed a specific success.
2.5 In case of imminent danger, for example in the case of a serious security vulnerability regarding the Infrastructure and/or in case of virus infestation of the customer's IT systems, AYYA Advisory AG is entitled, even without corresponding commissioning, to perform activities necessary to avert the danger and to charge according to expenditure. AYYA Advisory AG will inform the customer about corresponding measures in advance if possible.
2.6 AYYA Advisory AG is entitled to have services provided by third parties as subcontractors.
2.7 A provision (i.e., own provision) of standard software / infrastructure from third-party providers by the customer is only permissible in connection with the Managed Services if agreed.
2.8 The customer has no right of revocation after conclusion of the contract.
3. Reservation of Self-Supply
3.1 Insofar as AYYA Advisory AG obtains cloud services / standard software from third-party providers, AYYA Advisory AG's obligation to perform is subject to timely and correct self-supply. If, in these cases, there are performance deficiencies on the part of the third-party provider (e.g., restrictions on availability), AYYA Advisory AG is not liable for damages arising from this for the customer.
3.2 Performance hindrances for which AYYA Advisory AG is not responsible lead to a corresponding extension of the performance period. This applies in particular to insufficient or missing self-supply (see clause 3.1), force majeure, war, natural disasters, traffic or operational disruptions, power failures, network access disruptions, impeded imports, energy and raw material shortages, official measures and labor disputes, as well as the violation of cooperation duties or obligations of the customer. AYYA Advisory AG is entitled to withdraw from the contract if the performance hindrance continues for an unknown period and the purpose of the contract is endangered. If the hindrance lasts longer than two (2) months, the customer is entitled to withdraw from the contract with regard to the part not yet fulfilled, unless he is entitled to withdraw from the entire contract.
3.3 An extension of the performance period also occurs as long as the parties are negotiating a change in the service or AYYA Advisory AG submits a supplementary offer after assumptions in the offer that have become part of the contract prove to be incorrect.
3.4 Compliance with AYYA Advisory AG's performance obligation presupposes the timely and proper fulfillment of the customer's obligations.
4. Provision of Infrastructure
4.1 Unless otherwise agreed in the offer, AYYA Advisory AG only provides the respective infrastructures and internet access to them as part of the Managed Services. The customer's connection to the internet, the maintenance of the network connection as well as the nature and provision of the hardware and software required on the customer's side are not part of the contract.
4.2 AYYA Advisory AG can provide cloud services in the form of its own data centers / infrastructures or via data centers / infrastructures of third-party providers as part of the Managed Services. Unless otherwise agreed in the offer, AYYA Advisory AG is not subject to any restrictions regarding third-party providers and/or regions when selecting the data center / infrastructure.
4.3 Software provided by AYYA Advisory AG is, unless expressly agreed otherwise, standard software that was not individually produced for the customer's needs. The parties agree that according to the state of the art, it is impossible to develop standard software error-free for all application conditions.
4.4 For standard software from third-party manufacturers, AYYA Advisory AG supplies the customer with the original user documentation from the manufacturer. AYYA Advisory AG is not obliged to supply any documentation beyond this. Upon request, the customer can view the original user documentation to be supplied before concluding the contract. Otherwise, the documentation is supplied as online help within the framework of the software. If the customer wishes for more extensive written documentation, he can inform AYYA Advisory AG of this before concluding the contract. AYYA Advisory AG will then provide him with an offer for such documentation.
4.5 AYYA Advisory AG will provide the object code of the standard software. There is no entitlement to the release or disclosure of the source code.
4.6 If AYYA Advisory AG is obliged to install software, the customer shall ensure that the requirements for hardware and the other environment communicated to him, in particular the connection to the network including all cabling, are fulfilled before installation.
4.7 During test operations and during installation, the customer will ensure the presence of competent and trained employees and, if necessary, suspend other work with the computer system. He will ensure the backup of his data for each installation.
5 Support / Service Level Agreement
5.1 AYYA Advisory AG provides support for the Managed Services. Unless otherwise agreed in the offer, the performance commitments according to this clause apply.
5.2 Availability regulations
5.2.1 Downtime refers to the total time in hours of a year during which the Infrastructure is unable to respond to interaction requests from customers and/or users, with the exception of downtimes that occur due to the causes specified in clause 1.4. Availability determines the percentage of a year in which the provided service runs without unplanned disruption. The year is a period of 365 calendar days or 8,760 hours in which the Infrastructure is provided. The year begins on the day the Infrastructure is provided and ends 365 days later. Availability per year as a percentage is calculated as:
(8,760 hours - Downtime) / 8,760 hours.
5.2.2 The provision of the Infrastructure is made with an availability of at least 99% on annual average.
5.2.3 Downtimes are excluded from the calculation of downtime according to clause 5.2.1 under the following circumstances:
- Scheduled maintenance and announced downtime, including backup intervals as well as scheduled maintenance and announced downtime performed by AYYA Advisory AG / the third-party provider;
- Misuse of access rights by the customer and/or the user or other use of the cloud service in violation of the contract terms for the cloud service;
- Other problems beyond the reasonable control of AYYA Advisory AG, including: work on the system at the customer's request, restoration of a current database status from a backup medium or using database transaction logs, non-observance of the technical usage requirements by the customer.
5.3 Helpdesk
5.3.1 AYYA Advisory AG sets up a helpdesk for the support of Managed Services within the support times, which is staffed with technically qualified and experienced personnel. Only if this has been expressly agreed, is there a telephone on-call service outside of support times. Support times and media are agreed in the offer.
5.3.2 Outside of support times, the customer can only report errors via a telephone on-call service if this has been contractually agreed. If error messages are initiated outside of support times via email or other phone numbers, these are only considered to have been made at the beginning of the following supported support times.
5.4 Resolution
5.4.1 Disruptions are assigned to the following error classes:
- Error class 1 includes serious errors that prevent or unreasonably restrict the appropriate, economically meaningful use of essential parts of the service ("everything is down, nothing works"). This presupposes that the customer / user is unable to work.
- The Error class 2 includes functional interruptions that severely restrict the application of essential parts of the service for economically meaningful use. This presupposes that the customer / user is restricted in their work.
- The Error class 3 includes restrictions of functionality, so that the services can be used economically meaningfully with exceptions.
- The Error class 4 includes weaknesses of the services that do not restrict use. The impairment is so minor that work can essentially continue with the services for the time being and the work results are usable.
5.4.2 Each error message is assigned to an error class by AYYA Advisory AG at its reasonable discretion. A suggestion from the customer must be taken into account. If AYYA Advisory AG does not deviate by more than one error class from the customer's suggestion, the classification is considered to be by mutual agreement. The customer bears the burden of proof for the lower classification.
5.4.3 The later reclassification of an error message into another error class is only possible by mutual agreement.
5.4.4 In the event of an error, AYYA Advisory AG will respond to the customer's error message within the support times within the agreed response time. Unless expressly agreed otherwise, the response time for error messages of error class 1 is a period of four (4) hours, for error class 2 a period of eight (8) hours, for error class 3 a period of one week and for error class 4 a period of two weeks.
5.4.5 Successful resolution of the functional impairment within the response times is not owed.
5.4.6 The receipt of a qualified error message from the customer at the helpdesk via the agreed contact channels is decisive for the initiation of the response times.
5.4.7 An error message is only to be evaluated as qualified if the described error is reproducible, i.e. the operating situation and the working environment are described so precisely that a qualified employee of AYYA Advisory AG can trigger the error themselves at any time.
5.4.8 Each error message should also contain a description of the functional impairment as precise as possible and the time of the first detection. If the error only occurs at individual workstations, these should be identified.
5.4.9 If the customer made a change to their own system before the error occurred, this must also be reported.
5.4.10 In the case of serious errors of error classes 1 and 2, AYYA Advisory AG begins immediately after the initial reaction to limit the consequences of the error and continues its activity even outside of support time. As long as the error is not eliminated, the service is considered unavailable, unless it turns out that the customer is responsible for the error or the error should have been assigned to error class 3 or 4. Errors of error classes 3 and 4 are not considered as non-availability of the service.
5.5 Handling of non-compliance with Service Levels
If AYYA Advisory AG complies with Service Levels or only violates Service Levels in individual cases, i.e. not repeatedly / sustainably, claims of the customer are excluded. In the event that Service Levels are not met, the parties establish the following procedure:
5.5.1 AYYA Advisory AG notifies the customer, or the customer asks AYYA Advisory AG for an analysis of the Service Level data.
5.5.2 AYYA Advisory AG immediately determines according to support times 5.4.4 the (possible) cause of the disruption (if known) in order to comply with the Service Level.
5.5.3 Unless the pursuit of the disruption is abandoned, AYYA Advisory AG develops a corrective action plan, submits it to the customer for written confirmation (which is not to be unreasonably withheld or delayed) and implements it within a reasonable period of time (and according to the agreed deadlines) after confirmation has been given.
5.5.4 AYYA Advisory AG has not violated Service Levels if the cause analysis (properly carried out by AYYA Advisory AG) shows that the non-compliance with the corresponding Service Level was caused by the customer.
6 Special Obligations of the Customer
6.1 If AYYA Advisory AG contractually assumes the setup of hardware, the customer will provide, at their own expense, the necessary power and network connections within reach of the operating environment. Unless otherwise agreed or unless a manufacturer specification provided by AYYA Advisory AG at the time of contract conclusion provides otherwise, at least one conventional single-phase AC connection with 240 volts and one Ethernet network connection must be provided per independent computing unit (e.g. per server or workstation computer).
6.2 Before AYYA Advisory AG begins setting up hardware or installing software, the customer will independently ensure a complete backup of their data and current virus protection.
6.3 The customer will provide AYYA Advisory AG, at their own expense, access to the IT systems on which AYYA Advisory AG provides its services. The necessary identifiers and passwords for access with administrator rights must be kept ready and, at AYYA Advisory AG's request, either entered at the customer's discretion or handed over to AYYA Advisory AG in writing. The customer will enable AYYA Advisory AG to access data carriers and the internet. Waiting times of AYYA Advisory AG are to be remunerated according to expenditure.
6.4 The customer will protect the usage and access authorizations assigned to them or the users for the infrastructure as well as identification and authentication safeguards from access by third parties and will not pass them on to unauthorized users. They will change passwords at regular intervals and secure accesses, where possible, through multi-factor authentication. The aforementioned obligations must also be fulfilled if the customer receives a password that serves to identify their person to AYYA Advisory AG when making declarations concerning the contractual relationship. Persons who use the customer's password when making such a declaration are considered, refutably, to be authorized by the customer to make the respective declaration vis-à-vis AYYA Advisory AG. Should third parties use AYYA Advisory AG's services through misuse of passwords due to the customer's fault, the customer shall be liable to AYYA Advisory AG for this.
6.5 The customer will indemnify AYYA Advisory AG upon first request against all claims by third parties that are based on an illegal use of the infrastructure by them or occur with their approval or that result in particular from disputes under data protection law, copyright law or other legal disputes, or that are associated with the use of the standard software. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to immediately inform AYYA Advisory AG.
6.6 The customer will oblige the users authorized by them to comply with the provisions listed for the use of the infrastructure, in particular clauses 6.1 and 6.2.
6.7 As far as necessary and reasonable, the customer will cooperate in changes, e.g. by re-entering access data or simple adjustments to their systems.
6.8 The customer will immediately follow/implement instructions, recommendations, etc. from AYYA Advisory AG.
6.9 The customer will avoid excessive strain on the infrastructure, e.g. through scripts/commands that require excessively high computing power or use an above-average amount of working memory. AYYA Advisory AG is entitled to block access to content that does not meet the above requirements. AYYA Advisory AG will immediately inform the customer of such a measure and make the relevant content accessible again as soon as the customer proves to AYYA Advisory AG that it has been redesigned to meet the above requirements.
6.10 The customer will only use AYYA Advisory AG's services to the extent required by normal business operations. The customer will avoid excessive use of AYYA Advisory AG's services and capacities in order not to impair AYYA Advisory AG's IT systems and to ensure the security of AYYA Advisory AG's network.
6.11 If a customer endangers the security, integrity or availability of AYYA Advisory AG's cloud services or if AYYA Advisory AG suspects, based on objective indications, that serious disruptions to cloud services will occur, AYYA Advisory AG may temporarily block or restrict access. The times of blocking or restriction are excluded from the calculation of downtimes. This regulation also applies to so-called "Denial of Service" attacks (hereinafter "DoS attacks") that the customer carries out via cloud services. The same applies if the threat arises through the customer's system without the customer being responsible for it. It is clarified that this regulation also applies to DoS attacks for which the customer's IT systems are used by third parties.
6.12 If AYYA Advisory AG's cloud services are used by the customer for illegal purposes (sending spam mails, online services for providing illegal content, etc.), AYYA Advisory AG can block the cloud service.
7 Usage Rights to Cloud Services / Standard Software
7.1 The scope of the usage rights granted to the customer for the cloud services / standard software is determined by the relevant usage and license conditions of the third-party provider. These are described or referenced in more detail in the offer. The customer undertakes to comply with the usage and license conditions. If no usage and license conditions for the cloud services / standard software are attached to the offer, AYYA Advisory AG grants the customer and the employees designated by the customer for the use of the cloud services / standard software ("Users") with payment of the agreed prices the simple, non-sublicensable, non-transferable, revocable at any time, temporally limited to the duration of the contract and according to the following provisions content-limited right to use the current version of the cloud services / standard software and the functionalities associated with the cloud services / standard software in accordance with this agreement, unless otherwise agreed in the offer. The customer does not receive any rights beyond this, in particular to the cloud services / standard software.
7.2 If the customer is granted the right to use the cloud services / standard software for test purposes, their usage rights are limited to such actions that serve to determine the condition of the cloud services / standard software and its suitability for operation at the customer's premises. In particular, productive operation of the cloud services / standard software or preparation for productive operation is not permitted.
8 Prices and Payment Terms
8.1 AYYA Advisory AG always invoices its services in advance according to the billing period chosen by the customer. Invoices are due for payment immediately after invoicing. Unless otherwise agreed, the customer authorizes AYYA Advisory AG to invoice the payments to be made by them.
8.2 In addition to the agreed prices for the respective services, AYYA Advisory AG can charge additional fees for additional services (e.g. for additional data transfer / storage space) according to the respective contract. Subject to a deviating agreement, the use and billing of the additional services always takes place on the basis of the price list valid at the time of use.
8.3 The customer is granted encrypted and password-protected access to the customer center and service-specific administration consoles for setting up the services. If the customer adds services beyond the existing contract, AYYA Advisory AG is entitled to invoice these at the agreed prices.
8.4 If the customer selects an additional service during a billing period, this will be charged immediately. If a higher-value service is selected instead of the previous service ("upgrade"), the already paid prices will be offset proportionally.
8.5 Clause 3.9 of the GTC applies to payment default by the customer. If the customer makes up the payment within two months after the due date, AYYA Advisory AG will immediately grant them access again.
8.6 AYYA Advisory AG may increase the monthly prices for recurring services in continuing obligations without the customer's consent a maximum of once per year at its reasonable discretion by up to 10% with effect for the future, but for the first time at the earliest four (4) months after the start of the contract term. A price increase for partial services is only possible if these have already been agreed for at least four (4) months. The price increase should only be made to cover increased costs. The customer bears the burden of proof that the price increase made by AYYA Advisory AG was not made for this purpose.
10 Warranty for Legal Defects
10.1 AYYA Advisory AG warrants that the provided infrastructure does not infringe any third-party rights when used by the customer in accordance with the contract. This warranty presupposes that the customer immediately informs AYYA Advisory AG in writing of any third-party rights asserted against them and leaves the legal defense and settlement negotiations to AYYA Advisory AG. The customer will support AYYA Advisory AG free of charge to a reasonable extent, in particular by providing necessary information. Statutory notification obligations of the customer remain unaffected. Rights in this sense are only those to which the third party is entitled in the Federal Republic of Germany and in the states in which the customer uses the provided hardware and standard software as intended.
10.2 If the customer cannot use the provided infrastructure in accordance with the contract due to a conflicting right of a third party, AYYA Advisory AG may, at its own discretion, either (a) modify the services so that the third party's right is no longer infringed, or (b) procure the necessary authorization for the customer to use the services. Self-remedy by the customer or by involving third parties is excluded. Clause 4 of the GTC applies to the customer's claims for damages.
10.3 Claims of the customer due to legal defects do not exist if the provided infrastructure has been modified after acceptance by the customer or third parties, unless the customer proves that the infringement is not a consequence of the modifications. Claims of the customer also do not exist in case of infringements resulting from a combination of the infrastructure with services or products of third parties who are not subcontractors of AYYA Advisory AG in this regard.
10.4 If the notice of defect was unjustified, AYYA Advisory AG is entitled to demand compensation from the customer for the expenses incurred by AYYA Advisory AG. The support provided by AYYA Advisory AG is to be remunerated by the customer at the prices agreed with AYYA Advisory AG or, in the absence of an agreement, at market-standard prices.
11 Responsibility for Content / Identification / Personal Data
11.1 AYYA Advisory AG is not obliged to check the data stored by the customer on its provided systems for legal violations. The customer bears full responsibility for all content processed within the framework of the cloud services. The customer guarantees not to process or store any illegal content, in particular not to store or use copyrighted works on AYYA Advisory AG's servers without the consent of the copyright owner, nor content that violates criminal provisions.
11.2 Should the customer notice illegal content, they are obliged to block it immediately and notify AYYA Advisory AG.
11.3 AYYA Advisory AG is entitled to block potentially illegal content on the cloud services used by the customer at its own discretion and to inform the customer about the blocking. If the customer does not fulfill their obligation to delete the content within ten (10) days or does not prove to AYYA Advisory AG within this period that the content does not violate protective laws, AYYA Advisory AG is entitled to delete it without the customer's consent.
11.4 If the customer processes personal data of third parties within the scope of this contractual relationship, they are responsible for compliance with data protection regulations themselves. AYYA Advisory AG will only process the data processed by the customer as part of the cloud data on behalf of the customer within the scope of the customer's instructions.
12 Data Backup
If AYYA Advisory AG provides cloud services in the form of its own infrastructures as part of the Managed Services, the following regulations on data security apply:
12.1 The data stored on AYYA Advisory AG's systems is backed up daily. The backups are stored redundantly on different computers. Backup copies of the last 14 days are kept. These backups are to be understood as system backups and do not serve for versioning of customer data. In particular, it is not possible to perform a targeted restoration for a customer to a specific data state in the past.
12.2 The customer must therefore ensure that all data, especially that stored on AYYA Advisory AG's servers, is backed up at least once a day by copies on their own systems, as this can be lost, for example, during training, repair, installation and other interventions. Data backup on AYYA Advisory AG's servers is not sufficient to fulfill this obligation.
12.3 At the customer's request, AYYA Advisory AG will provide a copy of the data stored by the customer in the storage space assigned to them at any time during the contract period, but at the latest immediately upon termination of the contractual relationship. The data will be provided via download in the data format in which the data is stored on AYYA Advisory AG's data server, or alternatively in a data format agreed between AYYA Advisory AG and the customer.
12.4 After termination of the contract, for whatever reason, AYYA Advisory AG will store the saved data for one (1) month in the interest of the customer ("grace period") so that the customer has the opportunity to transfer the data to another system. After this grace period, the data will be automatically deleted. AYYA Advisory AG will specifically point this out upon termination of the contract.
12.5 AYYA Advisory AG expressly points out to the customer that confidentiality cannot be comprehensively guaranteed for data transmissions in open networks such as the Internet according to the current state of technology. The customer knows that AYYA Advisory AG could view the contents of the cloud services and possibly other data stored there at any time. However, AYYA Advisory AG undertakes to do this only if the customer requests AYYA Advisory AG to do so in writing and this is necessary to ensure the technical function of the cloud services. Data protection regulations will be observed by AYYA Advisory AG in any case. However, insofar as other Internet users may also be technically able to interfere with network security without authorization, access customer data and control message traffic, this is beyond AYYA Advisory AG's responsibility.
12.6 The customer is fully responsible for the security of the data transmitted to the Internet and stored at AYYA Advisory AG. For an additional charge, which must be agreed individually, AYYA Advisory AG can provide secure connections.
13 Contract Duration and Termination
13.1 Unless otherwise agreed, AYYA Advisory AG provides the agreed services from the time of provision for an indefinite period, initially for a minimum contract term of 12 months. Termination by both contracting parties is possible with a notice period of three (3) months before the end of the contract term. If no termination occurs within this period, the contract term is extended by one more year each time.
13.2 Beyond the notice periods agreed in the offer, the customer has no right to revoke or ordinarily terminate, especially not during the minimum contract term.
14 Return of Hardware
14.1 After the end of the contract, the customer will return the hardware to AYYA Advisory AG completely in a condition corresponding to the contractual use. The customer will completely delete or destroy data sets of the customer. The customer is obliged to confirm the complete return and deletion in writing to AYYA Advisory AG upon request.
14.2 When returning the hardware, the parties will create a protocol in which any existing damage and defects of the hardware are recorded. The customer has to bear the costs for the restoration in case of damage or defects for which they are responsible.
14.3 The customer will carry out the dismantling and return transport of the hardware. The customer bears the costs for the dismantling, packaging and return transport of the hardware. The customer will insure the hardware at their own expense against loss, destruction and damage during transport.