GTC Evy Solutions
Evy Solutions' Terms and Conditions and
Terms of Use for our AI-based software, Evy Xpact
§ 1 Subject Matter of the Contract
(1) The subject matter of this Agreement is the provision of software by the Provider for use by the Customer via a remote data connection, as well as related services.
Evy Solutions
– hereinafter referred to as the Provider –
§ 2 Provider’s Obligations – Provision of the Software
(1) The provider grants the customer the right to use the Evy Xpact application software
– hereinafter referred to as “Software” –
including the modules currently available and booked via the Internet. The Provider agrees to make the software available to the Customer on servers under the Provider’s control (i.e., cloud-based) and to maintain such availability, provided that the Customer has access to them as necessary.
(2) The specific scope of the software’s functionality is set forth in the description attached to the contract as Exhibit 1 (Functional Description and Scope of Services).
(3) If login credentials (username, password, etc.) are required to use the software, the provider will provide them to the customer upon conclusion of the contract, or no later than one business day after the contract is concluded.
(4) The Provider agrees to make the most current version of the user manual available to the Customer for download online via the website immediately after the contract is concluded, but no later than one business day after the contract is concluded.
(5) The software may be customized to meet the customer’s specific needs only if this has been agreed upon and only for an additional fee.
(6) The Provider agrees to continuously maintain and update the Software in accordance with Section 3 of this Agreement. The Provider is entitled to modify the Software, in particular to adapt it to technological advancements. The Provider shall notify the Customer in writing via email of any significant changes that alter the overall functionality of the Software at least four weeks in advance.
(7) If necessary, the Provider will, for a fee, assist the Customer in setting up individual software components on the Customer’s computer system.
(8) Upon conclusion of the contract, the Provider shall provide the Customer with support services in accordance with Section 4 of this contract.
§ 3 Provider’s Obligations – Maintenance of the Software and Data Connection, Updates
(1) The software made available to the customer for use pursuant to Section 2(1) of this Agreement must be the latest version of the software.
(2) The provider shall notify the customer of any malfunctions in the software and shall correct all software errors as soon as it becomes aware of them.
(3) A software defect exists if the software fails to perform the functions specified in the functional description (Exhibit 1 to this Agreement), produces incorrect results, terminates data processing without warning, or otherwise fails to function as intended, such that the software cannot be used or can only be used to a limited extent.
(4) If legal provisions or standards, or technical or scientific findings, change and such changes are of significant importance to the proper functioning of the software covered by this agreement with respect to the purposes typically pursued by customers of the software, the Provider shall make adjustments to the software as soon as the Provider becomes aware of the changes. The nature of the adjustment to the software covered by the contract (update, upgrade, or similar) is at the Provider’s discretion.
(5) As soon as the Provider modifies or supplements the software covered by this Agreement with new or improved functions or other features, the Provider agrees to replace the software covered by this Agreement. However, this applies only and exclusively once the testing phase for the modifications and supplements has been completed and the Provider offers the modified or supplemented version of the software on the market.
(6) Adjustments, modifications, and additions to the software will be carried out outside the customer’s normal business hours. They may only result in a temporary interruption or impairment of usability during normal business hours if this is necessary for technical reasons.
(7) Any additional agreements regarding the availability of the software and any brief interruptions for necessary maintenance are set forth in the offer.
§ 4 Provider’s Obligations – Support
(1) The Provider provides the Customer with a customer service (support) team to assist with technical issues, which the Customer may contact via email or telephone. The support is provided solely to assist the Customer in using the Provider’s services as set forth in this Agreement. The support is also made available to other customers.
(2) The Provider shall respond to the Customer’s questions regarding the use of the software without delay, but no later than two business days after the Provider receives the questions via email or telephone, using, in case of doubt, the same means of communication that the Customer used.
(3) The telephone service hotline is intended solely for answering questions regarding the use of the software covered by this agreement. It is available to the customer free of charge on business days from 9:00 a.m. to 5:00 p.m.
(4) The service hotline number is listed in the contract and will be provided to the customer separately.
The email address for support is: service@evy-solutions.de
The provider will notify the customer of any change to this number immediately.
§ 5 Provider’s Obligations – Data Hosting and Data Protection
(1) The software provided by the provider does not have the capability to store the processed data. The software stores only the information necessary for its operation. This includes user information (email address and password), configuration files for the regular operation of the software, and usage information (so-called tracing to track the behavior of the software, as well as access to it and the extent of use of the software functions).
(2) Due to the nature of the software provided, the provider is unable to back up any of the customer’s data. The customer is solely responsible for taking precautions against data loss in the event of system failures and for preventing unauthorized access by third parties to the customer’s data.
(3) The Provider is solely responsible for ensuring that the software functions covered by the contract are usable. The Provider has no duty of safekeeping or care with respect to the data transmitted and processed by the Customer. The Customer is responsible for complying with any retention periods required under commercial and tax law.
(4) The customer remains the sole owner of the data in all cases and may, at any time—particularly upon termination of the contract—demand that the provider return any individual or all data (training data, etc.), without the provider having any right of retention or lessor’s lien (Section 562 of the German Civil Code). The data shall be returned by transmission via a data network. The customer has no right to receive the software suitable for using the data.
(5) The provider will permanently delete the customer data in its possession 14 days after the termination of the contractual relationship, unless the customer notifies the provider within that period that they are requesting the return of the data. Failure to provide such notification shall be deemed consent to the deletion of the data.
(6) The Provider is familiar with the applicable data protection regulations—in particular the General Data Protection Regulation (GDPR), the Federal Data Protection Act (BDSG), the Telemedia Act (TMG), and the Telecommunications Act (TKG). The Provider will comply with the applicable data protection laws in their current versions.
(7) If the Customer processes personal data within the scope of this contractual relationship, the Customer is responsible for complying with data protection regulations. The Provider will process the data transmitted by the Customer only in accordance with the Customer’s instructions. If the Provider believes that an instruction from the Customer violates data protection regulations, the Provider will notify the Customer immediately. The Provider offers the Customer encrypted data transmission.
(8) Access credentials (usernames and passwords) used by the customer to access protected data must not be disclosed to unauthorized third parties. The provider’s employees may only be made aware of the access credentials or granted access to data stored by the customer if this is strictly necessary for the performance of this contract.
(9) Any additional obligations between the customer and the provider regarding data protection are governed by the data processing agreement.
§ 6 Availability in the Case of a Cloud-Based Solution
(1) The provider generally guarantees regular operation 24 hours a day, 7 days a week, with an annual uptime of at least 99%. The only exception is a so-called maintenance window, during which the software may be taken offline at short notice to perform troubleshooting and updates. This maintenance window is every Thursday from 12:00 a.m. to 2:00 a.m. (CET).
(2) If urgent maintenance work is required that cannot be postponed until the next maintenance window and therefore necessitates immediate action, the customer will be notified of the outage in writing via email at least two hours in advance. Should this exceptional circumstance arise, the customer will also be notified in writing once the maintenance work is complete and the web service is available again.
(3) Excluded from these agreements are downtimes caused by technical malfunctions in the server farm that are beyond the provider’s control. However, the provider undertakes to notify the customer in writing immediately upon becoming aware of such situations.
§ 7 Maintenance and Further Development in the Case of a Cloud-Based Solution
(1) The provider continuously resolves errors and malfunctions that prevent the proper use of the agreed-upon features and services. The costs for this are covered by the flat fee, so the customer incurs no additional costs.
(2) Custom development or functional customization is not covered by the flat fee. However, the provider is happy to provide customized quotes for new features or customizations upon request.
§ 8 Customer’s Obligations – Data Connection, Notice of Defects, Use by Third Parties
(1) The customer is responsible for establishing a data connection between the workstations intended for use and the data transfer point defined by the provider. The provider is entitled to redefine the data transfer point at any time, provided this is necessary to ensure the customer’s uninterrupted use of the services. In this case, the customer shall establish a connection to the newly defined transfer point.
(2) In the event of a software malfunction, the Customer shall notify the Provider immediately, providing details regarding the circumstances of the malfunction, its effects, and any potential consequences. The Customer may, if necessary, rely on qualified personnel to provide this notification.
(3) The customer is not authorized to make the software available to third parties for their use. A third party does not include anyone who uses the services free of charge on behalf of the customer, such as the customer’s employees, freelancers working under a contractual arrangement, etc. The customer is expressly prohibited from subleasing the software.
(4) If login credentials are provided, the customer is required to keep them secure and prevent any unauthorized use by third parties.
§ 9 Customer’s Obligations – Reproduction Rights and Copyrights
(1) The customer may not reproduce the software covered by this agreement unless such reproduction is necessary for the use of the software. Necessary reproduction is limited to the creation of copies of the software required to operate the software instances specified in Appendix 1.
(2) The customer may not make any further copies, including, in particular, printouts of the program code, regardless of the form. The customer’s right to reproduce the program code under the conditions set forth in § 69e(1) of the German Copyright Act (UrhG) remains unaffected. The customer has the unrestricted right to reproduce the user manual.
§ 10 Customer’s Obligations – Modifications to the Software
(1) The customer may not make any changes to the software. However, this does not apply to configuration options that the provider explicitly makes available to the customer for the purpose of adapting the software to the customer’s needs. Furthermore, this prohibition does not apply to changes necessary to correct errors, provided that the Provider is in default regarding the correction of the error, refuses to correct the error, or—in particular due to the filing for or commencement of insolvency proceedings—is unable to correct the error.
(2) Decompilation of the licensed software is prohibited. This does not apply to copies of the code or translations of the code form that are essential for obtaining the information necessary to ensure the interoperability of an independently created computer program with the licensed software or with other computer programs, provided that the conditions set forth in § 69e(1) of the German Copyright Act (UrhG) are met.
§ 11 Compensation and Payment Terms
(1) The Customer agrees to pay the Provider an agreed flat fee plus any additional transactions, as well as the (currently) 19% value-added tax. The flat fee covers the Provider’s services as set forth in Sections 1 through 5 of this Agreement.
(2) The customer may upgrade the scope of services at any time. To do so, the provider must be contacted.
(3) For additional expenses that go beyond the services owed by the Provider pursuant to Sections 1 through 5 of this Agreement (e.g., conducting orientation and training sessions, modifying or customizing the software covered by this Agreement), the parties agree on an hourly rate of EUR 125.00 to EUR 150.00, depending on the package, plus (currently) 19% VAT. Additional expenses are recorded and billed in quarter-hour increments.
(4) The Provider will invoice the Customer monthly for the contractually agreed fees. The invoice is due for payment within fourteen business days of receipt; if you are in default of payment pursuant to Section 286(3) of the German Civil Code (BGB), we will charge a flat-rate late payment fee of 40 EUR.
(5) The provider is entitled to adjust the agreed fee for the first time 12 months after the contract is concluded, and thereafter no more than once a year.
Adjustments will be made only to reflect changes in cost factors, in particular:
– Personnel and operating costs
– Infrastructure costs (e.g., cloud hosting, APIs)
– General market and price trends
The price adjustment may not exceed the actual increase in costs.
The provider will notify the customer in writing at least 6 weeks before the adjustment takes effect. In the event of an increase of more than 10%, the customer has the right to terminate the contract with immediate effect as of the date the adjustment takes effect.
§ 12 Term of the Agreement and Termination
(1) This Agreement shall enter into force upon signature. The term of the Agreement is 12 months. It shall automatically renew for additional 12-month periods unless terminated in writing by either party with 4 weeks’ notice prior to the respective expiration date, or unless a different term is specified in the offer.
(2) The customer is entitled to terminate the contract early, before the end of the contract term and without observing the notice period. In this case, the customer owes the provider the total amount of the monthly installments remaining due until the end of the regular contract term. This amount is due immediately.
(3) The right to terminate the contract for cause remains unaffected.
(4) Good cause for termination of this contract exists
in particular if
– the Provider grossly breaches its obligations under Sections 1 through 7 of this contract
– the Customer grossly breaches its obligations under Sections 8 through 10 of this contract
– the customer fails to fulfill their obligation to pay in accordance with Section 11 of this contract on two consecutive dates, despite a reminder and the setting of a deadline. In this case, the full amount shall become due by the end of the term.
– the customer culpably violates the prohibition in Section 8 of this contract to allow an unauthorized third party to use the software insolvency proceedings have been opened against the assets of a contracting party, or the opening of such proceedings has been rejected due to a lack of assets sufficient to cover the costs of the proceedings
– the customer is subject to indexation
(5) Upon expiration of the contract term, the Customer is obligated to immediately delete the software and any copies thereof, in particular the number of software instances agreed upon in Exhibit 1, and to confirm this to the Provider. All results of the software (read data, processed files, generated digital artifacts, etc.) remain unaffected by this and become the full and unrestricted property of the customer.
§ 13 Defects and Warranty
(1) With regard to the granting of the right to use the software pursuant to Section 2(1) of this Agreement and data hosting pursuant to Section 5 of this Agreement, the warranty provisions of Sections 535 et seq. of the German Civil Code (BGB) shall apply. The claim for damages without fault pursuant to Section 536a(1), Alternative 1, of the German Civil Code (BGB) is excluded.
(2) In the case of custom work, the provisions of §§ 631 et seq. of the German Civil Code (BGB) governing contracts for work and services apply. In all other cases, the provisions of the law governing service contracts (§§ 611 et seq. BGB) apply.
(3) The customer is required to have the software and its functionality examined by a qualified employee immediately after being granted access to it, and to report any identified defects in writing via email, providing a detailed description of the error.
(4) If the customer fails to report the defect, the software shall be deemed to have been accepted, unless the defect was not apparent upon inspection.
§ 14 Liability
(1) The provider is liable for the careful and professional performance of its contractual obligations and for ensuring that they are free from defects.
(2) Unlimited Liability: The Provider is liable for intentional acts and gross negligence. The Provider is liable for slight negligence in accordance with the Product Liability Act, as well as for damages resulting from injury to life, limb, or health.
(3) Limitation of Liability: In cases of slight negligence, the Provider shall otherwise be liable only for a breach of a material contractual obligation, the fulfillment of which is essential for the proper performance of the contract and on the observance of which the Customer may reasonably rely (fundamental obligation). This limitation of liability also applies to the Provider’s agents.
§ 15 Citation as a Reference and Public Relations
(1) The Provider is permitted to use the Customer as a reference without disclosing further details. The Provider uses the reference (in particular the Customer’s name and logo) for marketing purposes, primarily on its own company website.
(2) The provider may mention the partnership with the customer in the context of its own public relations activities. If the customer’s name is mentioned in a press article published by the provider, the customer must give its written consent to such use prior to publication.
§ 16 Final Provisions
(1) Any amendments or additions to this agreement must be in writing to be valid.
(2) If the contract contains invalid provisions, the validity of the remainder of the contract shall remain unaffected. The parties are obligated to replace the invalid provision with a valid one that most closely reflects the purpose of the contract, taking into account the economic interests of both parties. The same procedure shall apply if a gap in the provisions requiring supplementation becomes apparent during the performance of the contract.
(3) This contract is governed exclusively by German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(4) The exclusive jurisdiction for all disputes arising out of or in connection with this contract is Cologne.