§ 1 Scope of application
(1) TGA Systems GmbH specializes in the development and operation of cloud-based software-solutions for dialog centers. An overview of our products and services can be found at www.telerion.com.
(2) The following Terms and Conditions relate to the conditions between you (hereinafter also referred to as the contracting party) and us, the company TGA Systems GmbH (Q 7, 24 68161 Mannheim, Germany, HRB Number 726791, VAT ID: DE 220591295) (hereinafter also referred to as TGA), represented by Rainer Deike and Alper Oezcan, authorized as sole representatives, for the delivery of products and services rendered, insofar that they have not been altered through written consent between the parties. Service descriptions of each respective product, product-specific or individual Service Level Agreements will apply – where available. Differing or contrary terms shall only be considered binding if they are expressly confirmed by TGA in writing.
(3) TGA reserves the right to modify these Terms and Conditions in justified cases (for example legislative changes). In the event of an alteration to the Terms and Conditions, we´ll inform you in written form (via e-mail or fax). If you don´t object to this modification within two weeks of the notice, we will consider the modification to be recognized by you. You´ll be expressly informed of your right to raise objection and the resulting legal consequences of remaining silent.
(4) Our Terms and Conditions shall also apply to all future business transactions between TGA and the contracting party, in the currently valid version at the point in time of concluding the contract/latest order.
(5) These terms and conditions shall apply only vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of § 310 (1) BGB.
§ 2 Conclusion of the contract
The presentation of products and services on our website doesn´t constitute a legally binding offer, but merely an invitation to place orders (§ 145 BGB*). A contract comes into existence between you and TGA as soon as TGA accepts your order in writing or simply activates the service.
§ 3 Terms of Payment
(1) The fee to be paid varies according to the type of service. Details can be found in the product ranges, price sheets as well as the related order form or other, individual offers. Prices exclude statutory value-added tax.
(2) Unless agreed otherwise, you will receive a monthly invoice for all services rendered. Invoice amounts are due upon receipt without deduction.
(3) Objections to invoiced amounts are to be raised in writing within 14 days following receipt of invoice. After expiry of this term, the invoice shall be deemed to be accepted.
§ 4 Default of Payment
(1) You shall be deemed to be in default if you fail to pay within 14 days after the due date and reception of the invoice or a payment request equivalent.
(2) If the contracting party delays the payment of fees, we are entitled, on expiry of a suitable extension period, to cancel the contract or request compensation for breach of contract. If the performance concerned is no longer of interest because of the delay, we are entitled to terminate the contract and to request damages for non-performance.
§ 5 Duration and Termination
(1) Contracts with unlimited contract term may be terminated at any time with 30 days´ notice to the end of the month. Contracts with a minimum term can be terminated for the first time at the end of the fixed contractual period, with a notice period of 30 days. Without termination, those contracts will be extended automatically for an indefinite period, unless agreed otherwise. The contracts can then be terminated with 30 days´ notice to the end of the month.
(2) In addition, the contract may be terminated without observing any notice period for good cause. Termination for cause is applicable in particular to:
- an initiation of insolvency proceedings on the assets of the other party or on a personally liable shareholder or the submission of a claim to start insolvency proceedings or if the right to begin such measures has been denied due to insufficient assets;
- violation of essential terms and conditions of the contract;
- default of payments.
(3) Notices of termination must be in written form; an e-mail is sufficient.
§ 6 Duties and obligations of the contracting party
(1) You undertake not to misuse the services offered, in particular not to infringe the rights of third parties or to offer/promote any illegal or immoral contents. You shall indemnify us against claims by third parties which are based on the infringement of your obligations.
(2) You´ll notify us immediately in written form of any change of address, place of business, corporate name, legal form and legal representative as well as invoice address.
(3) You are obliged to observe all applicable laws and requirements concerning the use of our services.
(4) In case of culpable conduct against contractual conditions the contracting party obliges itself to exempt TGA of every liability and possible claims from third parties.
(5) In the case that we need to install local systems, the contracting party will provide TGA with all required connections and a free-of-charge remote-access for the duration of the local operation. Furthermore in case of disruptions and maintenance issues, the contracting party will grant TGA – after prior telephone notice – access to its operational spaces/systems. All local installations are subject to reservation of title.
§ 7 Proprietary Rights
(1) By accepting your order, TGA grants you a non-exclusive, non-transferable license to use the services/products during the term of the applicable order. The license granted herein confers no title or ownership and should not be construed as a sale of any rights.
(2) Any sublicensing or other further licensing, a transmission or the sale or rental is granted to you only by TGA`s explicit written consent in each individual case.
§ 8 Warranty
(1) The service/product has to be inspected immediately upon delivery. In the event that a defect is found, the contracting party has to report this to us immediately in written form according to § 377 HGB**.
(2) In case of a defect a replacement or improvement will be made based on the decision of TGA. If deficiencies have not been remedied by us within in a reasonable extension period, which was set in writing, the contracting party is entitled to either withdraw from the contract or to receive a reasonable reduction. Additional warranty claims are excluded. In particular, we are not liable for indirect damages, lost profits and other financial damages on your part.
§ 9 Limitation of liability
(1) We are liable for intent and gross negligence. Further, we are liable for the negligent breach of obligations, whose fulfilment enables the proper implementation of the contract and will put the achievement of the contractual purpose at risk and whose compliance you as a customer may rely on regularly. In the latter case we are only liable for the foreseeable, typical contractual damage. Are not liable for any slightly negligent breach to obligations other than those stated in the sentences above.
The aforementioned exclusions of liability shall not apply to losses arising from the violation of life, body or health.
(2) The contracting party is not entitled to derive claims for damages against TGA for the inability to use the products/services during downtimes due to necessary maintenance work, unless the damage was caused intentionally by TGA or by gross negligence on the part of TGA. TGA shall endeavor to keep downtimes necessitated by maintenance work to a minimum within the scope of existing technical and operational limitations.
(3) TGA is not liable for the loss of data and/or programs especially if the loss is due to the client’s omission to implement backup strategies to ensure the data recovery at a reasonable expense.
(4) TGA is not liable if contractual services cannot be fulfilled or cannot be fulfilled in the time agreed due to, for example, industrial action, force majeure, unavoidable influence or involvement of third parties or any other circumstances which are beyond the control of TGA.
(5) Cases of exclusion and limitation of liability shall apply equally to our employees, legal representatives and vicarious agents.
§ 10 Assignment prohibition/set-off/right of retention
(1) The contracting party will have a right to compensation or retention only if its counterclaims have been confirmed in a final and legally binding judgment, are undisputed or have been recognized by TGA.
(2) The contracting party may only transfer rights and obligations arising from this contractual relationship to third parties with the approval of TGA. Consent shall not be refused unreasonably. The provisions of Section § 354a HGB** shall not be affected thereby.
(3) TGA is entitled to provide the performance due in whole or in part through third parties.
§ 11 Price Changes
We are entitled to change the fees set out in the respective price lists with a notice period of four weeks. TGA will inform the contracting party of any price changes via E-Mail (to the E-Mail the contracting party supplied when signing up on TGAs online platform). Changes do not require your confirmation. The utilization of TGAs services from the date of the change onward will be considered as impliedly consented acceptance. In case of an amendment of the fees to the contracting parties’ disadvantage, the contracting party has an extraordinary right to terminate the contract, which is affected by the price increase after being notified of the change within a period of 10 calendar days, at the time the new price comes into force. We will draw your attention to the right of cancellation.
§ 12 Suspension of contractual services / blocking
(1) Without prejudice to the provision in § 4 we are entitled in event of a default in payment to suspend contractual performance, provided that the payment obligation amounts to at least 75 € and that any possible securities have already been consumed. The contractual agreement can be suspended at the earliest one week after a written warning of performance suspension.
Moreover contractual performance may be suspended without prior notice under the following conditions:
- the contracting party has given cause for the termination of the contractual agreement without notice
- TGA or the public security are compromised or
- the contracting party, whilst using TGAs services, has violated criminal law or if there is urgent suspicion concerning this matter or
- we become aware of circumstances that lead us to have well-founded doubts about the creditworthiness or ability to pay of the purchaser and there is a consequent danger that payments due to us under the contract will not be made or
- the amount of compensation increases to a very great extent and the facts justify the assumption that if access is suspended later on, compensation for the services provided in the meantime will not be paid in full or not on time and collateral potentially provided is exhausted and the suspension is not disproportional.
(2) We are entitled to block the service until final clarification; the payment obligation shall remain unaffected.
§ 13 Data protection
(1) TGA acts as data processor towards the contracting party (in accordance with the definitions of the GDPR). TGA collects, processes and makes use of personal data exclusively for the purposes of providing the service requested by the contracting party. We comply strictly with the regulations of the client in regard to type and nature, extent and procedure of the data processing. The contracting party is solely liable to third parties regarding the services provided by us.
(2) We collect, process and use customer data for the calculation of the service fees and inventory data for processing the ongoing contractual relationship with the contracting party.
(3) We undertake to comply in accordance with the legal provisions of data protection, especially with the General Data Protection Regulation (GDPR) and to protect the secrecy of communications.
(4) The contracting party is obliged to inform third parties by means of appropriate measures (for example publishing of privacy terms, recorded announcement etc.) and conditions, regarding the protection of data.
(5) Both parties shall hold in confidence and shall not disclose to any person any information on the business operation of the other party, its parent company or its affiliates.
§ 14 Credit Assessment
The contracting party agrees that TGA is entitled to check the credit standing of the contracting party with the General Credit Protection Association (SCHUFA) that is responsible for the contracting parties’ business seat or with other credit-reference agencies. We are authorized to inform SCHUFA or any other credit-reference agency on the application, admission and termination of the contractual relationship. Furthermore we shall be entitled to submit data relating to any hypothetical non-fulfillment (e.g. cancellation of the contract due to default of payment, requested court order in the event of an undisputed claim, and actions regarding compulsory enforcement) of the contractual obligations by the contracting party. TGA is entitled to receive such information from SCHUFA or other credit-reference agencies regarding contractual data from other contractual relationships, as long as the data is obtained during time of the contractual relationship period between TGA and the contracting party. The respective data transmission and storage may only be made as far as it is required to attend to the legitimate interests of TGA, a contractual partner of SCHUFA as well as any other credit-reference agency or the general public and if the customer’s legitimate interests are not affected in doing so. The contracting party can request information from SCHUFA or any other credit-reference agencies about existing data.
§ 15 Limitation
Claims against TGA have a limitation period of one year after they become known to the contracting party. Exempt from this rule are claims for damages due to injury to life, body and health, or if there is a violation of contractual duties (cardinal obligations), as well as liability for other damages based on intentional or grossly negligent breaches of duty committed by TGA; in this case, the statutory period of limitation shall apply. All warranty claims by the Purchaser are subject to a limitation period of one year, calculated from the delivery and acceptance of the work performed. Mandatory regulations (special law) shall prevail.
§ 16 Final Provisions
(1) All amendments or supplements to these terms have to be agreed on in writing. This is also the case for the revocation of the written form requirement.
(2) The law of the federal republic of Germany applies, with the exclusion of the Vienna UN Convention of 11th of April 1980 on Contracts for the International Sale of Goods (CISG).
(3) Place of performance and the exclusive place of jurisdiction for all disputes arising out of or in connection with this contract, shall be the registered office of TGA Systems GmbH.
(4) Should individual provisions of these terms and conditions be or become inoperative, the terms and conditions as a whole remain unaffected. The ineffective appointment is replaced by the contract parties through a legally valid clause, which comes closest to the whole purpose of ineffective appointments. The above provision applies in case of gaps accordingly.
(5) In the event of contradictions between the German and English versions of these Terms and Conditions, the German version shall take precedence.
As of: 17.09.2018