General terms and conditions
CAY SOLUTIONS GmbH
§ 1 Scope of Application
- These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply between CAY SOLUTIONS GmbH (hereinafter referred to as “CAY”) and its customers for the provision and use of TEGO.CLASS Software.
- 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 CAY executes the customer’s orders without any reservation, in full knowledge of the conflicting or deviating conditions of the customer.
§ 2 Registration, Free Trial and Conclusion of Contract
- The presentation of TEGO.CLASS software online at www.tego-class.com or cay.solutions shall not, in any way, constitute an offer, but just an invitation to submit an offer.
- CAY subsequently sends the customer an automatic confirmation of receipt by e-mail in which the customer is asked to confirm their e-mail address. The automatic confirmation of receipt shall merely document that the customer’s order has been received by CAY and does not constitute in any way an acceptance of the order.
- The contract shall only be concluded when CAY issues a Declaration of Acceptance, which is sent by a separate e-mail (order confirmation) and in which the customer’s order shall be listed again.
- After and/or with the acceptance, the customer shall receive a unique activation or access code and be able to test TEGO.CLASS free of charge for 30 days, starting with the day of registration. The access code is unique is must be safely stored by the user. For registrations after May 16, 2018, the access code can be restored by CAY. This requires an order from CAY. The unique access code shall also be kept securely encrypted at CAY and can only be requested by the customer. For registrations before May 16, 2018, the one-time access code cannot be restored. If the costumer has no longer access to their code, access to the database cannot be restored. If the customer does not subscribe to TEGO.CLASS before the end of the free trial, the account will initially stay active. However, the customer can no longer access and actively use TEGO.CLASS. The customer can also delete their account or subscribe to TEGO.CLASS on a monthly or yearly basis. If the customer decides to delete their account, their profile and the stored data and information will be deleted as well. In case the costumer has not subscribed to TEGO.CLASS until their free trial expires, CAY shall be entitled to ultimately delete the account two months after.
- The customer can subscribe for a fee with TEGO.CLASS in their account under the menu item “settings – ‘Purchase license’” by entering their billing and payment data and clicking on “Subscription for fee” and selecting the number of desired user accounts. This registration shall be regarded as a binding order by the customer to conclude a contract with an obligation to pay for the selected number of authorized users at TEGO.CLASS. This can be accepted by CAY according to § 2 clause 4).
- It is possible to add additional users for at any time with future effect. The additional costs shall be settled pro rata from the respective date for the current billing period. The number of users can be reduced at the end of each billing period.
- 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 Subject Matter of the Contract
- The subject matter of the contract shall be the granting of the possibility to use TEGO.CLASS Software as a cloud solution by the customer via internet access, and the granting of the rights of use as described in § 7 Rights of Use.
- The use of TEGO.CLASS Software as a service, the provision of virtualized hardware infrastructure and corresponding storage space shall also be the subject of the contract. CAY shall use a third party company as a computer center for this purpose, in which the customer’s data and information shall be stored and processed. Regular data backups shall be made.
- Access to the Internet shall not be the subject matter of the contract; the customer shall be solely responsible for the operability of their Internet connection, including the terminal equipment used to access the internet and use the software.
- The respective functional scope of the software results from the current performance descriptions on CAY websites (at: www.tego-class.com and cay.solutions.). CAY shall continue to develop the software with regard to quality and constant actuality, and maintain updates in the background. Furthermore, CAY shall continuously monitor the functionality of the software and eliminate all software errors and bugs within their technical possibilities. An error may occur if the function specified in the service description is not available or if the software does not function properly in another form, so that use is impossible or considerably restricted.
- CAY shall strive for an availability of the contractual software, which shall enable the customer to use the contractual software in the best possible way. However, the customer must be aware that, despite the greatest care and conscientiousness according to the current state-of-the-art, program errors and intrinsic system failures cannot be completely excluded. In order to maintain a high standard of quality, CAY must therefore carry out maintenance work at regular intervals, which can have a negative effect on availability. CAY shall try, as far as possible, to carry out such maintenance work at times of low use and to inform the customer ahead of time in case longer impairments will be in place. In addition, short-term maintenance work may be necessary due to unforeseeable events (virus attacks or other malware attacks). Other unforeseen events such as force majeure, war, judicial, official or supervisory measures may also lead to an interruption of availability. To the extent that such circumstances influence the availability or functionality of TEGO.CLASS, it has no effect on the contractual conformity of the services provided. In the event of a termination of use due to the aforementioned events, the customer shall have no claim to compensation for damages or expenses whatsoever.
- CAY shall not have the right to reduce the purchase price or to terminate the contract without prior notice in the event of a stop of use which is not due to intentional or grossly negligent conduct on part of CAY.
§ 4 Terms of Payment and Default
- The fee for using TEGO.CLASS after the free trial period has expired, shall depend on the number of users that have been registered, and consist of a monthly or annual fee. The customer shall be informed of the fee to be paid including VAT in the order confirmation. The current prices are also listed under PRICES on the website.
- If the due date of payment is determined according to the calendar, the customer is already in default by this date. In this case, they shall have to pay CAY default interest amounting to 5 percentage points above the base rate, if the customer is not a consumer the interest rate shall be 8 percentage points above the respective base rate. The obligation of the customer to pay default interest shall not exclude the assertion of further default damages by CAY.
- CAY shall be entitled to reasonably increase the fees for the subject matter of the contract to compensate for unforeseeable cost increases, especially in the case of increases in personnel costs or third party costs from which CAY receives the necessary advance payments for the provision of its services. The customer shall be notified of such fee increases in writing or by e-mail. In the event of a fee adjustment, the customer shall be entitled to terminate the contract at the end of the current contract month. If they make use of this right of termination, the not increased fees until the termination takes effect will be charged.
§ 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 Rights 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 TEGO.CLASS 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 TEGO.CLASS 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 CAY’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
- The customer shall undertake to always provide an up-to-date e-mail address in their TEGO.CLASS user account. The e-mail address and contact details of CAY can be found in the imprint of the websites www.tego-class.com and cay.solutions respectively. 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 TEGO.CLASS, they shall guarantee that they are entitled to do so in accordance with the applicable data protection regulations. CAY points out in particular that teachers, depending on the Federal State, may have to obtain permission from the school when processing personal data of pupils on private IT systems. 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 TEGO.CLASS 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 TEGO.CLASS, 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.
- Data can be exported to local media (e.g. PDF files) for each module using the print function. Particularly before the termination of the contractual relationship, the customer can save their data locally or archive it via a local printer. CAY in particular shall not be liable for the loss of data, to the extent that this is due to the customer’s failure to back up corresponding data locally.
§ 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 for the use of the software TEGO.CLASS 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: June 28, 2018