General terms and conditions
§ 1. material scope and subject matter of the contract
The following terms and conditions (the “General Terms and Conditions of Contract”) 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 matter of the contract is:
the provision of software programmes listed at www.tegoly.com for use via the Internet and
the storage of the customer’s data on servers of the computer centre.
Individually developed software programmes are not the subject of this contract.
§ 2. type and scope of the 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. The following shall be decisive
the defined scope of performance of the software specified in the contract, which is set out in the respective
the suitability for the use assumed in the contract,
the conditions stipulated in the contract,
the following conditions,
generally applied technical guidelines and professional standards, in particular also 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 the event of discrepancies, the contractual agreements shall apply in the above order.
Further terms and conditions, in particular the general terms and conditions of the contracting party, shall not apply, even if tegoly does not expressly object to them. The General Terms and Conditions 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 framework. The software shall be provided via the Internet. The transfer point for the SaaS services is the router output of the data centre 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. The customer is not entitled to reverse engineer, decompile, disassemble, duplicate or use any part of the software to create a separate application.
Customer hereby acknowledges tegoly as the sole licensor of the Software and the copyrights associated therewith. tegoly’s rights as sole licensor shall also extend to any enhancements to the Software provided by tegoly to Customer unless otherwise provided in writing.
The customer hereby acknowledges tegoly’s trademark, name and patent rights with respect to the software and related documentation. The Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Software and related Documentation.
3.2 Customer’s Rights to the Data
The data collected, processed and generated by the Software shall be stored on the servers of the Data Centre. In any case, the customer remains the sole owner of the data and can therefore demand from tegoly at any time, especially after termination of the contract, the surrender of individual or all data without any right of retention on the part of tegoly. The surrender of the data is effected by electronic transmission via a data network or, after 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 as well as for the protection of the rights of the persons concerned (information, use, correction, blocking, deletion) lies with the customer.
3.4 Duration of contract and termination
The minimum term for the provision of the SaaS service is 1 month. It is also possible to conclude a contract for 12 months. With both variants, the contract duration is automatically extended by one or 12 further months if no notice of termination is given. The amounts will be collected from the last deposited credit card data or via Microsoft.
tegoly is entitled to terminate the contract for good cause, especially in case of failed direct debits or credit card collections.
§ 4. maintenance conditions and service level
4.1. further developments/change of service level
tegoly reserves the right to make further developments and service changes (e.g. by using newer or different technologies, systems, procedures or standards) in the course of technical progress and performance optimisation after conclusion of the contract. In the event of significant changes in performance, tegoly will notify the customer accordingly in due time. If the customer suffers significant disadvantages as a result of the service changes, the customer has 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 performance.
If new versions of the software are made available, tegoly shall grant the customer the rights listed in section 3 accordingly also for the respective new version.
4.2 System operation
tegoly ensures that the provided software is operated in an environment and configuration suitable for the customer’s requirements as well as on hardware suitable for the customer’s intended use. This includes the number and type of servers, regular backups, scalability, power supply, air conditioning, firewalling, virus checking, broadband internet connection.
tegoly carries out daily backups of the databases.
4.3 System availability
The availability of the network of the data centre at the router exit 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 which tegoly marks as so-called maintenance windows for optimisation and performance enhancement as well as loss of time during fault clearance due to reasons for which tegoly is not responsible and failures due to force majeure.
4.4 Disturbances of the system availability
Disruptions of system availability must be reported by the customer immediately after they become known. Before reporting a malfunction, the customer has to check his area of responsibility. In the case of fault reports received within the support hours, the fault clearance shall begin within two hours. In the case of fault reports received outside support hours, fault clearance shall begin 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’s side) shall not be counted towards the fault clearance time.
§ 5. warranty
According to the state of the art, it is not possible to exclude errors in software under all conditions of use. However, tegoly warrants that the software mentioned at www.tegoly.com is basically usable. The period of limitation is one year.
Errors in the software and the corresponding documentation will be removed by tegoly free of charge within a reasonable period of time. A prerequisite for this claim to remedy the defect is that the defect is reproducible. tegoly may, at its own discretion, either repair or replace the defect in order to fulfil its warranty obligation. In particular, tegoly may provide the customer with a new version of the software in order to fulfil the warranty obligation. It is equivalent to a remedy of the defect if tegoly delivers an alternative solution to the defective function which allows the customer to use the software as stipulated in 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 remedied by tegoly in accordance with the stated conditions, the customer may demand a reduction of the monthly SaaS fee. The same right is given to tegoly, if the production of the error correction is not possible with reasonable effort. If in the course of the error correction it turns out that the problems are due to operating errors or improper use by the customer, tegoly may demand reasonable compensation for the incurred effort.
tegoly does not guarantee the fulfilment of the customer’s individual requirements by the software mentioned in the contract. This applies in particular to the non-achievement of the intended economic success. Warranty claims against tegoly are only due to the direct customer and cannot be assigned.
§ 6. limitation of liability
In any case, the contractual as well as tortious liability of tegoly 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, except in cases of intent or gross negligence. Liability for loss of profit is excluded.
tegoly assumes no liability for disruptions on telecommunication connections, for disruptions 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 that occur when the customer passes on passwords or user IDs to unauthorised persons.
§ 7. remuneration
For the SaaS services a monthly or annual fee as agreed in the contract will be charged. The accruing fees will be invoiced in advance over a period of time.
§ 8. terms of payment
Payments are made by credit card clearing or via 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 they 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 unauthorised 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 problems of the customer, it may become necessary to access data records of the customer. The access can take place via a web meeting with the client or via database analysis. This access is limited to the period of the respective support measure.
If personal data has to be processed within the scope of the subject matter of the contract, tegoly and the customer will comply with the legal data protection regulations.
In accordance with the Federal Data Protection Act (BDSG), tegoly informs the customer that data of the customer will be stored.
§ 10. final provisions
The 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 rest of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intention. The same shall apply if a loophole in the contract should become apparent.