TIVITY Terms and Conditions
(1) The General Terms and Conditions (GTCs) apply to all business relationships between
TIVITY GmbH (hereinafter referred to as “TIVITY” or “we”)
Landsberger Str. 314, 80687 Munich
Tel.: +49 89 89544260
Fax: +49 89 89544599
and its clients (hereinafter the “Client”).
(2) Unless otherwise agreed, those GTCs apply as are in force at the time of commissioning, or in any case in the version last submitted to the Client in writing as a framework agreement, including for similar future transactions, without these GTCs being referenced in each individual case.
(3) The GTCs apply exclusively. Any differing, conflicting or additional GTCs of the Client shall only become a part of any contract to the extent to which we expressly agree to them. This requirement applies in any case, for example, even if we, whilst being aware of the Client’s GTCs, execute an order without reservation.
(4) Any individual agreements reached with the Client (including ancillary agreements, supplements and amendments) shall in all cases have precedence over these GTCs. A prerequisite for proving the content of an individual agreement, subject to counter-evidence, is the presentation of a written contract or of written confirmation from us.
(5) Statements to be delivered to us by the Client after contract conclusion (e.g. the setting of deadlines, notification of defects, cancellation), shall only be valid if in writing.
(6) Any references to the applicability of statutory provisions shall only serve for the purposes of clarification. Even without such clarification, the statutory provisions apply, unless directly modified or expressly excluded by these GTCs.
2. Realisation of contracts
(1) Our offers are non-binding, unless they are expressly designated as binding.
(3) A paid service is entered into only after the end of the trial period, if you have confirmed your chosen applications and services as an overview, and then confirm the chargeable activation. Only then is a paid-for service contract realised. This also applies to each additional booking.
(4) You may not use the SaaS services and you may not accept the contractual terms if you are not of legal age, or if you are excluded from benefiting from these services under the statutory regulations of your country, including the country in which you are resident or from which you use the SaaS services.
(5) In order to access the SaaS services, you must provide truthful information about yourself and your business (such as identification and contact details) during the registration process or during your continued use of the services. You hereby declare that the information that you provide when registering with TIVITY will always be accurate, correct and up to date.
(6) In addition, when using certain TIVITY SaaS services, specific or modified regulations may apply. You will be advised thereof before using the relevant product/service. To the extent that these special rules differ from the following provisions, the special rules shall take precedence.
(7) These conditions explicitly do not apply for services defined as “third-party services”, i.e. those not offered by TIVITY itself, but by a third party, even if this is done free of charge and/or if registration with TIVITY is required for their use. The third parties’ GTCs apply exclusively to such services.
3. SUBJECT MATTER / PERFORMANCE REQUIREMENT OF TIVITY / PRECONDITIONS
(1) The SaaS services offered by TIVITY are divided into various service products. Additionally, you may choose additions to the SaaS services. TIVITY will generally provide the SaaS services and other services over the Internet. Thus you receive the technical ability and authorisation to use the SaaS services (which are hosted on the central servers) in accordance with these conditions. With regard to the characteristics of the SaaS services, in addition to the general system requirements, only those specified in the latest product description services apply in relation to the relevant product you select.
(2) The SaaS services generally comprise a user interface (client), encrypted transmission, data processing and access to your data and the storage and backing-up of your data. TIVITY also assumes the maintenance and care of the technical hardware and software infrastructure required to use the SaaS services.
(3) On the www.TIVITY.one website, you can find the latest documentation in electronic form, giving a definitive description of the SaaS services. These also contain detailed instructions and conditions of use. In the case of on-premise use, i.e. at your own premises or on site, the client shall provide the hardware and software conditions necessary for the use of the services. The operation and maintenance of these technical requirements is solely your responsibility – even in the event of further developments/configurations of services and/or their infrastructure.
(4) To the extent that you use TIVITY’s free services or to the extent that the SaaS services you choose contain specifications which go beyond those listed in the product description, this will be done free of charge and without any legal claims arising therefrom.
(5) Free SaaS services that we provide may be discontinued at any time and without notice. In the event that the discontinuation of a service is significant for you, you will informed thereof by TIVITY at least four weeks in advance. No claims for discounts, reimbursement or compensation shall arise from the discontinuation.
(6) TIVITY provides its SaaS services on the basis of complex modern technology. We intend to continuously develop the SaaS services at our sole discretion, so as to make the experience as convenient as possible for users. The Client agrees that the form and nature of the SaaS services provided by TIVITY may change during the contract period, to a reasonable extent.
(7) Within the scope of the use of the TIVITY services, regular automatic updates are provided by TIVITY. These updates are designed to improve, enhance and further develop the services. They may consist – depending on the circumstances of the specific case – of troubleshooting (fixes/patches), improved features or completely new versions. The Client agrees that updates form part of the service and will be offered.
(8) The interface for TIVITY’s contractually owed SaaS services is the transition point to the Internet at the the TIVITY data centre. The Client’s connection to the Internet, the maintenance of the network connection and the procurement and provision of the hardware and software necessary for the customer is not the subject of this contract.
(9) TIVITY aims to enable continuous system access to its SaaS services, i.e. 24 hours a day, 365 days a year. The hosting operation is designed to ensure high availability; however, excepted from this are routine, necessary and planned maintenance and repair measures. Constant availability is expressly not guaranteed and is not due. In particular, access may be temporarily limited for technical reasons, for example due to necessary maintenance and repair work. To the extent possible, necessary maintenance and repair work will be announced in advance, in particular routine maintenance and repair work. Unavailability due to maintenance and repair work under this section does not constitute grounds for any compensation unless it exceeds 24 hours per day, 48 hours per week and 96 hours per month.
(10) Unless expressly agreed, TIVITY owes no further performance. Specifically TIVITY is not obliged to effect installation, consulting, customisation and/or training services, nor the creation or provision of custom settings or additional programs.
4. INDUSTRIAL PROPERTY RIGHTS / LIMITATIONS / TRANSFERABILITY / FAIR USE
(1) All the contents of the web pages, SaaS services, other services, newsletters, software and documentation, as well as the technologies of TIVITY (“Content”) are subject solely – in particular but not limited to – to the copyright of TIVITY or its licensors. TIVITY reserves all rights not expressly granted. You are only entitled to use the content in the form provided by TIVITY, in accordance with the intended use and in accordance with the contract.
(2) TIVITY grants you a worldwide licence – the terms of which are limited for the duration of the contract, personal, nonexclusive, nontransferable, non-sub-licensable – to use SaaS services selected by you (assuming that payable services have been paid for) within the selected specification parameters (e.g. number of users / workspaces / memory capcity, see www.tivity.one/pricing) of your selected products solely for your own business purposes. Consequently, you are only entitled to process your own (comapny) data using SaaS services. However, you may set up third-party access to your booked products, where such third parties assist you with your work. The same applies with regard to the software provided for the use of SaaS services.
(3) The licence will be granted to you exclusively for the purpose of enabling the use of the SaaS services provided by TIVITY in accordance with the provisions of the contractual terms, and for the purpose of benefiting therefrom. You may only access the SaaS services through the user interface provided by TIVITY or the client.
(4) Upon termination of the contractual relationship between you and TIVITY, the right to use the licence also ends.
(5) To the extent that, during the contract period, TIVITY provides new versions of SaaS services as a result of further developments, the licence granted for this principle shall apply correspondingly, unless TIVITY adds supplementary rules, of which you will be advised.
(6) You agree not to render the SaaS services for any purpose, nor to to sell, resell, transfer, assign, distribute or otherwise exploit them in any way by means of a licence or sublicence, to allow third parties access to them, to reproduce, copy, modify, create derivative works of, reverse engineer, decompile or otherwise attempt to derive the source code of the software, or allow any third party to do so, unless this is expressly permitted or required by law, or unless TIVITY has expressly permitted you to do so under a separate written agreement.
(7) We assume that you will use our services only for the intended purposes. However, as every company may have different demands – and ones which we cannot forecast – fair-use rules apply:
We therefore reserve the right to technically limit the excessively or abnormally high utilisation of our services, where this could impair the use and availability of services for all of our users, in our estimation. In this case we will contact you at the earliest opportunity in order to agree a solution for your specific usage needs.
5. CONTRACT TERM AND TERMINATION
(1) After completion of the test period, you will be prompted via email or via the application to activate the chargeable service(s). By confirming, an indefinite contractual relationship in return for payment begins.
(2) The period of notice for termination of the contract is 14 days to the end of the month, unless another term or period of notice is agreed in connection with the selected product. The notice of termination must be in writing in order to be effective.
(3) During the contractual term of a paid SaaS service, you may generally – and at any time – add or deduct additional paid extensions (e.g. other users), supplements or resources (such as memory) for each SaaS service.
(4) A change from free SaaS services to paid-for or products to a higher category of product is possible at any time. In this case, any payments already made which are included in the newly selected product will be credited to your account.
(5) The right of both parties to extraordinary termination for cause remains unaffected by the above provisions.
(6) Upon termination of the contract, the contract will be properly wound down. TIVITY is entitled, at the latest after thirty days have passed since termination, to delete your data such that it is irretrievable. You will be informed in writing of the irretrievable deletion via the email address you most recently gave. However TIVITY reserves the right, in particular in the event of a default in payment on your part, to retain the customer data. Compliance with retention periods under fiscal and commercial law is solely your responsibility.
(7) TIVITY points out that after termination of this contract by you, you are not entitled to your customer data being imported into the then-current version of SaaS services once again. In particular, upon termination of the contract, your settings, facilities and master data entries may be completely lost.
6. CONSENT TO COMMUNICATION BY EMAIL
You hereby agree that you will be sent contract-related information electronically via email to an email address specified by you upon contract subscription.
7. OTHER OBLIGATIONS
(1) All activities taking place within the scope of your user accounts are within your area of responsibility. You must keep your connection identifier information secret, protect against access by unauthorised persons and ensure proper use. You are solely responsible for the use of your access account and are responsible for any occurring abuse; you must bear all costs of unauthorised usage.
(2) You must notify TIVITY immediately of any unauthorised use of passwords or access to the products, and of any other known or suspected breach of data security.
(3) You agree not to act in such a way that the availability of the products, the servers or the networks which are operated to provide the SaaS services by TIVITY are impaired or interrupted.
(4) You shall refrain from any misuse of the SaaS services. You will in particular not transmit content or data in an unlawful way, or transmit content or data which has illegal content. You shall refrain from any attempt to retrieve (or have a third party retrieve) – in an unauthorised manner – information or data, or to intervene (or have a third party intervene) in the technical software and hardware systems which are operated by TIVITY, or break into TIVITY’s computer networks in an unathorised manner.
(5) Before sending, you shall check your data and information for harmful content, particularly viruses, and use state-of-the-art virus-protection programs
(6) In addition you must, immediately and without charge, perform any necessary cooperation, particularly when TIVITY requests you to do so, and when the necessary measures do not exceed a reasonable cost.
8. REMUNERATION / SETTLEMENT
(1) The costs incurred for the use of chargeable products are charged according to the applicable prices, which can be viewed at www.tivity.one/pricing. Unless explicitly stated otherwise, all these fees and prices are net prices, which are billed in addition to statutory VAT. VAT is listed separately on the invoice.
(2) The remuneration is payable monthly or annually in advance, depending on the option selected.
(3) Invoicing is done electronically. Should you require a paper bill by post or if this is a necessity, an additional fee of €2 will be charged per invoice.
(4) Fees for any return debit notes or unfunded credit cards shall be borne by you. Processing fees of €5 shall be due in each case. You are entitled to prove that no damage has occurred or that it is significantly lower than claimed.
(5) If payment authorisation is withdrawn, if a return debit note is issued at your request or if other changes in the payment schedule occur, TIVITY may change the collection type to “invoice-payer”. Due to the increased effort involved, as an invoice-payer, you will be liable for an additional cost of €2 per invoice. A switch back from invoice-payer to debit-payer may be carried out only at your written request.
(6) Any credit or refund amounts, for example, because of overpaid remuneration or duplicate payments, are generally offset against the next payment due.
9. DEFAULT / SYSTEM LOCK-OUT
(1) If you are in arrears with payment, TIVITY has the right – following a relevant reminder setting the term at one week – to no longer provide SaaS services, and in particular, it may block access. In this case, you are still obliged to pay the relevant remuneration.
(2) During the delay, the fees are subject to the relevant applicable statutory default interest rate. We reserve the right to claim further damages. The entitlement to commercial default interest (Section 353 HGB) vis-a-vis merchants remains unaffected
(3) We are also entitled pursuant to Section 321 BGB [German Civil Code] to refuse performance, if the financial situation of the Client significantly deteriorates before conclusion of the contract, and we – despite careful verification – do not recognise this after signing the contract (for example through a request to open insolvency proceedings).
(4) The Client is entitled to effect offsetting or retention only insofar as its claim is legally established, undisputed or has been recognised by us. The Client may only exercise its right to retention only insofar as its counterclaim is based on the same contract. In the case of defects in the performance, the reciprocal rights of the Client under Section 10 of these GTCs remain unaffected.
10. DEFECTS / NOTICE OF DEFECTS / DISCLAIMER REGARDING WARRANTY
(1) TIVITY guarantees that it will provide its services in a manner that complies with general industry standards, insofar as they are applicable to the products.
(2) If TIVITY’s performance under this contract is deficient, we will either rectify or repeat (at your discretion) the performance within a reasonable time frame and following the receipt of the notification of defects. If defect-free provision does not occurs within a reasonable period set by you due to reasons for which TIVITY is responsible, you may reduce the agreed remuneration by a reasonable amount. The right of to reduce the remuneration is limited to the amount of remuneration attributable to the defective performance.
(3) In the case of a shortfall in system availability, you may the remuneration paid accordingly.
(4) A precondition of your warranty claims is that you report errors occurring to contractual services immediately, indicating in particular how and under what circumstances the error has occurred, and that you actively support TIVITY in troubleshooting, to the extent this is reasonable.
(5) The Client’s claims for damages and reimbursement of expenses also exist in the case of defects only in accordance Section 11 of these GTCs, and shall otherwise be excluded.
(1) We shall only be liable for damages – irrespective of their legal grounds – occurring due to intent or gross negligence. Gross negligence is not deemed to exist in the case of damages that have been caused by computer failure or by transmission faults or viruses.
(2) Liability for slight negligence is limited to the breach of a contractual obligation, restricted to compensation for foreseeable, typically-occurring damage which generally does not exceed twice the invoice value for that performance, but at most €50,000.00 in any case.
(3) The exclusion and/or limitation of liability shall not apply to damages resulting from injury to life, limb or health.
(4) The limitations of liability pursuant to Section 11 (3) do not apply if we have fraudulently concealed a defect or if the Client has claims under the Product Liability Act.
(5) TIVITY will use appropriate state-of-the-art virus scanners and firewalls to prevent and/or disable unauthorised access to your data and the transmission of harmful information, especially viruses. You acknowledge that complete protection against damaging data is not possible because viruses, worms, Trojans, spam and other security threats are constantly being created and developed. TIVITY points out that the security products used by TIVITY can not provide 100% protection from harmful content. TIVITY therefore accepts no liability or responsibility for the security of a SaaS service vis-a-vis the corresponding risks, insofar as TIVITY has fulfilled its aforementioned obligations.
(6) Liability is further excluded in cases of force majeure and in the event of technical difficulties beyond our influence and responsibility.
(7) Following a breach of obligation which does not lead to a defect, the Client may rescind or terminate the contract only if we are responsible for the breach of obligation. In all other instances, the statutory provisions shall apply.
(8) If our liability is excluded or limited, this also applies to the personal liability of our employees, workers, personnel, representatives, and agents.
12. MUTUAL INDEMNIFICATION / INFRINGEMENT OF INDUSTRIAL PROPERTY RIGHTS
(1) Within the scope of your use of the product(s), you shall comply with all applicable laws and regulations of the Federal Republic of Germany. You are specifically prohibited to set any data or content that infringe laws, violate foreign rights or copyright or other rights of third parties. You are responsible for the information you provide and the content itself. TIVITY will not check the contents – either for accuracy, nor for the absence of viruses or for technical processability with regard to viruses.
(2) You agree that you are solely responsible for any breach of your obligations under the contract terms and for the resulting consequences. You will indemnify TIVITY from all claims, together with reasonable costs for legal defence, based on your or your users’ illegal or non-contractual use of the services.
13. DATA SECURITY / DATA STORAGE / BACKUP
(1) With regard to Internet security, TIVITY uses some advanced technologies. When you access the client provided by TIVITY available on our website, the Secure Socket Layer (SSL) technology protects your information using the server authentication. This ensures that your data is safe and is available only to users you have registered. Competitors can therefore not access your data.
(2) Your data is continuously backed up so that in the event of a failure, the loss of data is restricted to those forms/transactions which are open. In addition, the data is backed up on a daily basis.
14. DATA PROTECTION
(1) Data is transferred to TIVITY at the risk of the Client.
(2) Both parties shall, to the extent applicable, observe the data protection regulations valid in Germany in particular, and will require their employees involved in the contract to adhere to data secrecy according to Section 5 BDSG [Federal Data Protection Act], unless they are already generally obligated accordingly. Further legal requirements and professional-ethical secrecy and confidentiality obligations remain unaffected.
(3) If the Client – either itself or via TIVITY – collects, processes or uses personal data, then the Client is responsible for ensuring that it is entitled to do so under the applicable regulations, in particular those concerning data protection, and, in the event of a breach of such regulations, the Client will indemnify the provider from third-party claims.
(4) If you – either yourself or via TIVITY’s services – collects, processes or uses personal data, then you are responsible for ensuring that you are entitled to do so under the applicable regulations, in particular those concerning data protection, and, in the event of a breach of such regulations, you will indemnify TIVITY from third-party claims, including the relevant costs of legal defence.
(5) Vis-a-vis TIVITY, you have sole entitlement with regard to the power of disposal and the ownership of all customer-specific data (input/output data, processed data, stored data), as per Section 11 Federal Data Protection Act.
15. BRANDS AND OTHER RIGHTS
The Client is – unless otherwise agreed with TIVITY – not allowed to use our trade names, trademarks, service marks, logos, domain names or other distinctive TIVITY characters. You undertake not to remove, obscure or alter any proprietary rights notices (including copyright and trademark notices) appearing in the products or contained in the products.
16. EXPORT CONTROLS
(1) TIVITY’s website offers support services and uses software and technology that may be subject to the US export controls of the US Department of Commerce, the Office of Foreign Assets Control of the US Treasury and other US authorities and/or to the export control regulations of Switzerland and the European Union ( EU). You acknowledge that the website may not be transferred or otherwise exported or re-exported to countries on which the United States, Switzerland and/or the EU have placed an embargo, nor to nationals or residents of such countries or to persons or into organisations that are listed in the “Specially Designated National List” of the US Treasury or in the “Table of denial Orders” of the US Department of Commerce. The lists of embargoed countries and persons referred to are subject to change without notice. By using the products offered by TIVITY, you warrant that your location is not in an embargoed country and you are not under the control of an embargoed country or of a national or resident of an embargoed country, or of a designated person. You agree to strictly comply with all US, Swiss and EU export laws and assume sole responsibility for obtaining any licences necessary for export or re-export.
(2) TIVITY’s products may use an encryption technology subject to the licensing regulations under the US Export Administration Regulations, 15 CFR Parts 730-774 and Council Regulation (EC) No. 1334/2000.
17. Prohibition of Assignment
The Client may not assign claims from the contract without our prior written consent, and only to the extent that our interests are not unreasonably impaired by such assignment.
18. Applicable law, jurisdiction, language
(1) These terms and conditions and all relationships between us and the Client are exclusively subject to the laws of the Federal Republic of Germany, to the exclusion of all international and supranational (contractual) legal systems, in particular the CISG.
(2) If the Client is a merchant as defined in the German Commercial Code, a legal entity under public law or a public special fund, the exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the court with jurisdiction for Tivity’s registered office. The same applies if the buyer is an entrepreneur, as defined in Section 14 BGB. We are, however, entitled in all cases to assert our claims against the Client at the general place of jurisdiction of the latter.
(3) Overriding statutory provisions, especially regarding exclusive jurisdiction, remain unaffected.
(4) The German version of the GTCs shall prevail.