CAY

General terms and conditions

§ 1 Scope of Application

The following general terms and conditions (hereinafter “GTC”) are valid between CAY SOLUTIONS GmbH (hereinafter “CAY”) and its customers regarding the individual agreed upon deliveries and services.
Subject of the contract is the granting of the possibility to use the offered software as an online or offline solution (e.g. internet platforms), adaptations of software solutions, deliveries of print products and various other individual deliveries or services that have been ordered for commission by the customer. In the case that CAY may have provided the customers with their own solutions via Internet access, the rights of use described in § 7 apply.
This offer is directed at customers who are entrepreneurs within the meaning of § 14 BGB (German Civil Code), a legal entity under Public Law or a Special Fund under Public Law.
We shall accept conflicting GTC or GTC that deviate from our own GTC only under the condition that we explicitly agree to their validity in writing. These GTC shall also apply only if Vaitego executes the customer’s orders without any reservation, in full knowledge of the conflicting or deviating conditions of the customer.

§2 Conclusion of contract

All our offers and information in our price lists, catalogs, advertisements, advertising material and Internet pages are non-binding and subject to change at all times. We explicitly reserve the right to change all information displayed via above mentioned subjects at any time. Declarations of acceptance and all orders of the customer are binding and, for legal validation, require our written or telex (e-mail or fax) confirmation. Deliveries and invoicing are equivalent to written confirmations.
The contract shall only be concluded when CAY SOLUTIONS issues a Declaration of Acceptance, which is sent by a separate letter, fax or e-mail (order confirmation) and in which the customer’s order shall be listed again.
By placing an order, the customer shall confirm that they are of age and therefore entitled to conclude a contract on behalf of their company or school, if necessary.

§3 Retention of title clause

We reserve the rightful ownership of all delivered goods and services rendered until the complete fulfillment of the contract and all our claims against the buyer. Any form of pawning or transfer of security before that is strictly prohibited. In case of third parties claiming access in any form, it is the buyer’s obligation to inform us immediately. The buyer is also obligated to always safeguard the property of CAY even if the delivered goods and services are not intended directly for the buyer, but for third parties. The buyer must inform the potential third party recipient of this retention of title. The buyer must treat all goods subject to retention of title with care at all times.

§4 Terms of payment and delay

Payments for all orders are generally to be made in advance, unless CAY and the costumer have explicitly and mutually agreed upon other payment arrangements. Automated payments are initiated to be fulfilled at the time of order. If the mutually agreed upon payment method for an order is an invoice, it has to be completed upon delivery without any deductions, unless other conditions have been agreed upon. Irrespective of differing determinations of the buyer, CAY is entitled to set payments off against older debts first. If costs and interest have already arisen, CAY is entitled to crediting the payments first to the expenses, then the interest and finally to the principle service. If the buyer does not meet their payment obligations according to the contract, if they stop their payments, or if CAY becomes aware of other circumstances that may call the buyer’s credit-worthiness into question, CAY is entitled to immediately bill the buyer’s entire remaining debt and/or to demand advance payments or a mutually agreed upon form of security regarding the remaining debt.
If the buyer’s invoice balance due is collected by one of CAY’s payment service providers, the privacy policies of CAY SOLUTIONS apply accordingly.
If the due date of the buyer’s payment is determined by the calendar, the customer is already in delay by failing to meet the due date for the payment. In this case, they have to pay CAY late payment interests in the amount of 5 percentage points above the standard interest rate. If the customer is not simultaneously the consumer, the interest rate is 8 percentage points above the respective standard interest rate. The obligation of the customer to pay late payment interests does not automatically exclude the assertion of potential further damages for CAY solutions caused by the initial delay.
CAY is entitled to appropriately increase fees regarding the subject matter of the contract (for annual or long-term services) to offset unpredictable increases in costs, in particular if personnel costs or costs of third parties, from which CAY obtains inputs that are vital and necessary to maintain and secure CAY’s own services, increase. The customer will be informed in advance in writing or by e-mail about a fee increase in this manner. In the event of a fee adjustment, the customer is entitled to terminate the contract at the end of the current contract month. If they make use of this termination right, the fees will not be increased until the cancellation becomes effective.

§5 Warranty

During the contract period, CAY shall guarantee that the software can be used by the customer according to its designed functions.
Claims for defects can only be asserted if the suitability of the software for contractual use is considerably reduced. CAY cannot be held liable in particular if temporary loss of use occurs due to maintenance work to be carried out or other unforeseen events within the meaning of § 3 Subject Matter of the Contract clause 5).
Liability for defects independent of fault for initial defects shall be excluded. The application of § 536a clause 2 German Civil Code (BGB) shall be excluded.

§6 Liability

Claims of the customer for damages shall be excluded. Excluded from this are claims for damages of the customer from injury of life, body and health, or from the violation of essential contractual obligations (cardinal obligations), as well as liability for other damages, which are based on an intentional or grossly negligent breach of duty by CAY, its legal representatives or vicarious agents. Essential contractual obligations shall be those whose fulfilment is necessary to achieve the contractual objective.
In case of breach of essential contractual obligations, CAY shall only be liable for the contract-typical, foreseeable damage if this was caused by simple negligence, unless the customer’s claims for damages are based on injury to life, body or health.
CAY’s legal representatives and vicarious agents shall also be subject to the restrictions in paragraphs 1 and 2 if claims are asserted directly against them.
The provisions of the Product Liability Act shall remain unaffected.

§7 Right of Use

The customer shall receive a non-exclusive, non-transferable right to use the contract software, limited in time to the term of the contract. In this respect, the customer shall have the possibility to save and process their data with software from CAY and to load the user interface of the software for display on the screen into the main memory of the end devices used for this purpose in accordance with the contract, and to make the resulting reproductions of the user interface.
In the event that the contractual software is used by downloading program files (“apps”) on mobile devices, the permissible use includes the installation of the contractual software, loading it into the main memory and the intended use by the customer.
The customer shall not be entitled to make software solutions from CAY available to unauthorized third parties. Under no circumstances shall the customer have the right to rent or otherwise sub-license the purchased contractual software, to reproduce it publicly or make it accessible to the public by wire or wireless means, or to make it available to third parties against payment or free of charge.
The customer shall grant CAY a simple right of use, limited in time to the final deletion of the customer account, for the purpose of the contract execution to the data and information stored by the costumer in the software, as far as this is necessary for the provision of the services owed according to this contract. In particular, CAY shall be entitled to carry out data backups and to maintain a failure system. CAY shall also be entitled to change the structure of the data or the data format.
Furthermore, the customer shall be entitled to all rights to databases or database works on Vaitego’s or a subcontractor’s servers that arise during the term of the contract. The latter shall remain the owner of the databases or database works even after the end of the contract. Excluded from this are data of the customer, which CAY processes in anonymous form for statistical purposes.

§8 Term of Contract and Termination

The contractual relationship shall be effective for the term booked by the customer. The contractual relationship shall be automatically extended for the same duration if it is not terminated by the customer or CAY in due time.
The contractual relationship can be terminated by CAY or the customer without giving reasons at any time before the expiration of a billing interval. Notice of termination must be given in writing.
The right to forceful termination for good cause shall remain unaffected. In particular, CAY shall be entitled to terminate the contract with immediate effect without prior notice if the customer is in arrears with payment of the remuneration for two consecutive months. In the event of forceful termination for good cause, the customer’s claim for reimbursement of the remuneration paid in advance by them shall be excluded, unless the customer terminates the contract for good cause for which CAY is responsible.
If the contract is terminated by the customer or CAY, the account data will be irrevocably deleted two months after the end of the contract period. A recovery shall not be possible. CAY will ask the customer to back up the data on their own systems one last time before the final deletion. Exceptions from deletion shall exist for data that are subject to legal retention periods.

§9 Obligations of the Customer to Cooperate

Obligations of the Customer to CooperateThe customer shall undertake to always provide an up-to-date e-mail address to CAY. The e-mail address and contact details of CAY can be found in the imprint. The customer shall agree to communicate with CAY by e-mail. This shall include important contractual notifications as well as information on innovations, changes to the General Terms and Conditions and status notifications.
The customer shall have to take precautions to prevent unauthorized use of the contractual software. In particular, they shall be obliged to keep passwords and access data secret and not to pass them on to third parties. The customer shall be obliged to change their password immediately in case of suspicion of unauthorized knowledge by third parties. The customer must ensure that any employees who are provided with access data comply with these obligations.
The customer shall be responsible for complying with the legal regulations for processing personal data and information on private IT systems. If the customer collects, processes or uses personal data of themselves and their users by means of software from CAY, they shall guarantee that they are entitled to do so in accordance with the applicable data protection regulations. In case of a violation and the use of CAY by a third party, the customer clears CAY from any claims.
The customer shall be responsible for the actuality of the used system (hardware, software – especially operating system, virus scanner, etc.). CAY shall have no influence on the system environment of the customer’s computer, tablet or smartphone. It is recommended that the customer always ensure that the system environment is functional and up-to-date.
CAY shall not take note of the contents of the customer or its users processed by means of software from CAY and shall not check the contents used with the software. The customer shall be responsible for ensuring that the contract software is not used for racist, discriminatory, pornographic, politically extreme or otherwise illegal purposes or for purposes that violate official regulations or requirements. In particular, they shall undertake to observe the applicable national and international copyrights, licensing and trademark rights as well as other industrial property rights and personal rights of third parties. When using software from CAY, the customer must refrain from any misuse (e.g. by spreading spam, malware, Trojans or other malicious software). The customer shall indemnify CAY against claims by third parties for violation of the above provisions. Furthermore, CAY shall have the right, after prior written notification, to block the customer’s access to the contractual software.

§10 Set-off and Rights of Retention of the Customer

The customer may offset or assert rights of retention only against undisputed or legally binding claims. The customer can assert a right of retention only if the counter-claim is based on the same legal relationship.

§11 Data Protection

CAY shall undertake to observe all data protection regulations, in particular the Basic Data Protection Ordinance. The customer’s data shall be collected and processed exclusively for the execution of the contract and shall not be passed on to third parties without the customer’s express consent. The general data protection regulations of CAY shall apply.

§12 Changes to the GTC

CAY shall be entitled to change the General Terms and Conditions if this has become necessary to adapt to developments that could not have been foreseen at the time the contract was concluded and which, if not taken into account, would lead to a considerable disturbance in the balance of the contractual relationship. Essential provisions of the contractual relationship, in particular those concerning the term, type and scope of the agreed services and provisions for termination, shall remain unaffected by this reservation of right to change.
If necessary, amendments to these General Terms and Conditions may also be made in order to remedy difficulties in the execution of the contract due to loopholes arising after conclusion of the contract. This is the case, for example, if a changed jurisdiction or a change in law leads to the invalidity of one or more provisions of these GTC.
CAY shall also be entitled to amend these GTC if the amendment serves to adapt to technical progress or CAY adapts or extends the scope of functions of TEGO.CLASS (e.g. the introduction of new applications or functions) and an adaptation of the GTC becomes necessary as a result. This shall only apply if it does not result in unreasonable restrictions of the functions used by the customer.
The customer shall be notified of any intended changes in text form at least six weeks before they take effect, stating the reason and the concrete scope. If the customer does not object in writing or by e-mail within six weeks after having received the notification of change, the changes shall become part of the contract at the time they take effect. The customer shall be specifically informed of this consequence and the respective changes in the notification of change.
If the customer exercises their right of objection, the planned changes to the GTC shall be deemed rejected and the contractual relationship shall be continued without the proposed changes. In the event that the customer exercises their right of objection, CAY shall be entitled to extraordinary termination of the contract. In this case, the period of notice shall be 30 days.

§13 Final Clauses

The place of performance shall be CAY’s place of business.
Ancillary agreements shall be made in writing.
Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavour to find an effective provision instead of the invalid provision which comes as close as possible to the economic meaning of the invalid provision. Otherwise, the invalid provision shall be replaced by the corresponding statutory provisions.
All legal relations between the parties in connection with this contractual relationship shall be governed by the Law of the Federal Republic of Germany to the exclusion of International Private Law and the UN Convention on Contracts for the International Sale of Goods.
If the customer is a merchant, a legal entity under Public Law or a Special Fund under Public Law, the exclusive place of jurisdiction for all disputes arising from and in connection with this contractual relationship shall be Braunschweig. This shall not affect the right to take legal action against the customer at their usual place of jurisdiction.

Braunschweig, status 2018