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.