§ 1. material scope and subject matter of the contract
The following terms and conditions (the “General Terms and Conditions”) shall apply to the use and operational support of standard software programs (the “Software”) produced by tegoly GmbH, hereinafter referred to as tegoly, and provided as a Software-as-a-Service service via the medium of the Internet.
The subject of the contract are:
the provision of software programs listed at www.tegoly.com for use via the Internet, and
the storage of the customer’s data on servers of the data center
Individually developed software programs are not subject of this contract.
§ 2. type and scope of services
The nature and scope of the services to be provided by both parties shall be governed by the contractual agreements. The scope of services defined in the contract shall be deemed to be the agreed quality. Decisive for this are:
the defined scope of services of the software listed in the contract, which is specified in the respective
user documentation is specified,
the suitability for the use presupposed in the contract,
the conditions specified in the contract,
the following conditions,
generally applied technical guidelines and professional standards, including in particular the international standards and proposals of the Internet Engineering Task Force (IETF), as documented in the Request-for-Comments (RFC), and the W3C (World Wide Web Consortium).
In case of discrepancies, the contractual arrangements shall apply in the above order.
Further conditions, in particular general terms and conditions of the contracting party, shall not apply, even if tegoly does not expressly object to them. The GTC of tegoly GmbH shall apply exclusively.
3.1. Rights of the customer to the software
tegoly grants the customer for the duration of the contract a non-exclusive, non-transferable and non-sublicensable right to use the software specified in the contract and the associated user documentation within the scope. The software is provided via the Internet. The transfer point for the SaaS services is the router output of the data center used by tegoly to the Internet. The customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. Customer may not “reverse engineer”, decompile, disassemble, duplicate or use any portion of the Software to create a separate application.
The customer hereby acknowledges tegoly as the sole licensor of the software and the associated copyrights. tegoly’s rights as sole licensor also apply to extensions of the software provided by tegoly to the customer, unless otherwise agreed in writing.
Customer hereby acknowledges tegoly’s trademark, name and patent rights with respect to the Software and related documentation. Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Programs and related documentation.
3.2. Rights of the customer to the data
The data collected, processed and generated by the software are stored on the servers of the data center. In any case, the customer remains the sole owner of the data and may therefore demand from tegoly at any time, in particular after termination of the contract, the return of individual or all data without any right of retention on the part of tegoly. The data shall be released by electronic transmission via a data network or, by separate agreement, by handing over data carriers. The customer has no right to also receive the software suitable for the use of the data. The responsibility for the permissibility of the collection, processing and use of the data and for safeguarding the rights of the data subjects (information, use, correction, blocking, deletion) lies with the customer.
3.4. Contract duration and termination
The minimum term for the provision of the SaaS service is 1 month. It is also possible to sign a contract for 12 months. With both variants, the contract term is automatically extended by one or 12 additional months if no notice of cancellation is given. Amounts will be collected from the most recent credit card information on file or through Microsoft.
tegoly is entitled to terminate the contract for good cause, in particular in case of failed direct debits or credit card collections.
§ 4. maintenance conditions and service level
4.1. Further developments/change in performance
tegoly reserves the right to make further developments and changes in performance (e.g. by using newer or different technologies, systems, procedures or standards) in the course of technical progress and optimization of performance after conclusion of the contract. In the event of significant changes in performance, tegoly will notify the customer in a timely manner. If the customer suffers significant disadvantages as a result of the service changes, he shall have the right to extraordinary termination of the contract as of the date of the change. The customer must give notice of termination within two weeks of receiving notification of the change in service.
When providing new versions of the software, tegoly shall grant the customer the rights listed in Section 3 accordingly also for the respective new version.
4.2. System operation
tegoly shall ensure that the provided software is operated in an environment and configuration suitable for the customer’s requirements and on hardware suitable for the customer’s intended use. These include the number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking, broadband Internet connection.
tegoly performs daily backups of the databases.
4.3. System availability
The availability of the data center network at the router output on the Internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods that tegoly marks as so-called maintenance windows for optimization and performance enhancement as well as loss of time in troubleshooting due to reasons for which tegoly is not responsible and failures due to force majeure.
4.4. System availability disruptions
Disruptions to system availability must be reported by the customer immediately after they become known. Before reporting the fault, the customer must check his area of responsibility. For fault reports received within support hours, fault clearance begins within two hours. In the case of fault reports received outside support hours, fault clearance begins on the following working day. Delays in fault clearance for which the customer is responsible (e.g. due to the unavailability of a contact person on the customer side) shall not be counted towards the fault clearance time.
§ 5. warranty
It is not possible according to the state of the art to exclude errors in software under all application conditions. However, tegoly guarantees that the software mentioned at www.tegoly.com is basically usable. The limitation period is one year.
Errors in the software and the associated documentation shall be corrected by tegoly within a reasonable period of time free of charge. The prerequisite for this claim to rectify the fault is that the fault is reproducible. tegoly may, at its own discretion, either repair or replace the goods in order to fulfill its warranty obligations. In particular, tegoly may provide the customer with a new version of the software in order to fulfill the warranty obligation. It is equivalent to the elimination of a defect if tegoly provides an alternative solution to the defective function that allows the customer to use it in accordance with the contract.
Warranty claims are excluded if the software is not used in accordance with the contract. Furthermore, warranty claims are excluded if the customer makes changes or extensions to the software specified in the contract, unless the customer proves that the errors are not causally related to the changes or extensions.
If a significant program error is not corrected by tegoly in accordance with the aforementioned conditions, the customer may demand a reduction of the monthly SaaS fee. The same right has tegoly, if the production of the error correction is not possible with reasonable effort. If in the course of troubleshooting it turns out that the problems are due to operating errors or improper use by the customer, tegoly may demand reasonable compensation for the expenses incurred.
tegoly does not guarantee the fulfillment of the customer’s individual requirements by the software mentioned in the contract. This applies in particular to the non-achievement of the targeted economic success. Warranty claims against tegoly are only due to the direct customer and cannot be assigned.
§ 6 Limitation of liability
In any case, tegoly’s contractual as well as tortious liability, except in case of intent and gross negligence, is limited to EUR 500,000 for personal injury, EUR 100,000 for financial loss, property damage and damage to activities, and EUR 50,000 for loss of data. Liability for loss of profit is excluded.
tegoly does not assume any liability for disturbances on telecommunication connections, for disturbances on line paths within the internet, in case of force majeure, in case of fault of third parties or of the customer himself. tegoly does not assume any liability for damages resulting from the customer passing on passwords or user IDs to unauthorized persons.
§ 7. remuneration
A monthly or annual fee agreed in the contract is charged for SaaS services. The fees incurred are billed over a period of time in advance.
§ 8. terms of payment
Payments are made by credit card clearing or through Microsoft. If the payment deadline is exceeded, services may be restricted in the event of default.
The customer is not entitled to set off claims against tegoly, unless the claims are legally established claims or claims acknowledged by tegoly in writing.
§ 9 Confidentiality, data protection
The contracting parties undertake to keep secret the knowledge gained within the scope of the subject matter of the contract – in particular technical or economic data as well as other knowledge – and to use it exclusively for the purposes of the subject matter of the contract.
This shall not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission on the part of the contracting parties or must be made accessible due to a court order or a law. In the event of support assistance with customer problems, it may be necessary to access customer records. Access can be via a web meeting with the customer or via database analysis. This access is limited to the period of the respective support measure.
If personal data must be processed within the scope of the subject matter of the contract, tegoly and the customer shall comply with the statutory data protection provisions.
In accordance with the German Federal Data Protection Act (BDSG), tegoly informs the customer that data of the customer will be stored.
§ 10. final provisions
Place of performance is Witten/NRW. The place of jurisdiction for both contracting parties is Witten/NRW. The law of the Federal Republic of Germany shall apply exclusively. The contract, its supplements and amendments as well as changes in form must be in writing.
Should any provision of the contract be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent. The same applies if a contractual gap should become apparent.