General Terms and Conditions
General Terms and Conditions of Evy Solutions GmbH and
Terms of use for our AI-based software Evy Xpact
§ 1 Subject matter of the contract
(1) The object of the contract is the provision of software by the provider for use by the customer via a remote data connection as well as other associated services.
Evy Solutions GmbH
– hereinafter referred to as Provider –
§ 2 Service obligations of the Provider – Provision of the software
(1) The Provider shall grant the customer the use of the application software
Evy Xpact
– hereinafter referred to as Software –
including the currently available and booked modules via the Internet. The Provider undertakes to make and maintain the software available to the customer on servers within the Provider’s sphere of influence (i.e. cloud-based), to which the customer has access as required.
(2) The specific functional scope of the software is set out in the description attached to the contract as Annex 1 (functional description and scope of services).
(3) If access data (user name, password, etc.) are required for the use of the software, the Provider shall provide these to the Customer upon conclusion of the contract, but no later than one working day after conclusion of the contract.
(4) The Provider undertakes to make the user manual available to the Customer in the latest version online via the website for download immediately after conclusion of the contract, but no later than one working day after conclusion of the contract.
(5) Customisation of the software to the specific needs of the customer is only owed if agreed accordingly and only for an additional fee.
(6) The Provider undertakes to continuously maintain and update the software in accordance with § 3 of this contract. The Provider is authorised to modify the software, in particular to adapt it to technological progress. The Provider shall give the Customer at least four weeks’ written notice by e-mail of any significant changes that alter the overall functionality of the software.
(7) If necessary, the Provider shall provide the Customer with assistance in the commissioning of individual software components on the Customer’s computer system for a fee.
(8) After conclusion of the contract, the Provider shall provide the Customer with support services in accordance with § 4 of this contract.
§ 3 Service obligations of the Provider – maintenance of the software and the data connection, updating
(1) The software provided to the customer for use in accordance with § 2 (1) of this contract must correspond to the current status of the software.
(2) The Provider shall inform the Customer of any malfunctions of the software and shall rectify all software errors as soon as it becomes aware of them.
(3) A software error exists if the software does not fulfil the functions specified in the functional description (Annex 1 to this contract), delivers incorrect results, aborts data processing in an uncontrolled manner or does not work properly in any other way, so that the use of the software is not possible or only possible to a limited extent.
(4) If legal regulations or standards, technical or scientific findings change which are of not insignificant importance for the functionality of the contractual software with regard 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 type of customisation of the contractual software (update, upgrade or similar) is the responsibility of the Provider.
(5) As soon as the Provider modifies or supplements the contractual software with new or improved functions or other performance features, the Provider undertakes to replace the contractual software. However, this shall only apply if and when the test phase for the changes and additions has been completed and the Provider offers the software in the changed or supplemented version on the market.
(6) Adjustments, changes and additions to the software shall be carried out outside the customer’s normal business hours. They may only lead to a temporary interruption or impairment of usability during normal business hours if this is necessary for technical reasons.
(7) Additional agreements on the availability of the software and any short-term interruptions for necessary maintenance work are regulated in the offer.
§ 4 Service obligations of the Provider – Support
(1) The Provider shall provide the Customer with customer service (support) to assist with technical issues, which the Customer can contact by e-mail or telephone. The sole purpose of the support is to assist the Customer in utilising the Provider’s services owed under this contract. The support is also made available to other customers.
(2) The Provider shall answer the Customer’s questions regarding the use of the software immediately, but at the latest within one working day of receipt of the respective questions by the Provider by e-mail or telephone, whereby in case of doubt the means of communication used by the Customer shall be used.
(3) The service hotline, which can be reached by telephone, serves solely to answer questions about the use of the contractual software by telephone. It is available to the customer free of charge on working days between 9.00 am and 5.00 pm.
(4) The telephone number of the service hotline is stated in the contract and will be communicated to the customer separately.
The e-mail address for support is: service@evy-solutions.de
The Provider shall inform the customer of any change to this number without delay.
§ 5 Service obligations of the Provider – data hosting and data protection
(1) The software made available by the Provider does not have the option of storing the processed data. The software only stores the information required for operation. This includes user information (e-mail address and password), configuration files for the regular operation of the software and usage information (so-called tracing for tracking the behaviour 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 not in a position to back up any of the Customer’s data. The Customer shall be responsible for taking precautions against data loss in the event of failures and for preventing unauthorised access to the Customer’s data by third parties.
(3) The Provider is only responsible for the usability of the contractual software functions. The Provider shall have no duty of custody or care with regard to the data transmitted and processed by the Customer. The customer is responsible for observing any retention periods under commercial and tax law.
(4) The customer shall in any case remain the sole authorised owner of the data and may demand that the Provider return any or all data (training data etc.) at any time, in particular after termination of the contract, without the Provider having a right of retention or lessor’s lien (Section 562 BGB). The data shall be surrendered by transmission via a data network. The Customer shall not be entitled to receive the software suitable for using the data.
(5) The Provider shall delete the customer data in its possession for a period of 14 days after termination of the contractual relationship, unless the customer notifies the Provider within this period that it demands the surrender of the data. Failure to notify the customer shall be deemed consent to the deletion of the data.
(6) The Provider is aware of 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 shall comply with the statutory data protection provisions as amended.
(7) If the Customer processes personal data within the scope of this contractual relationship, the Customer shall be responsible for compliance with data protection regulations. The Provider shall only process the data transmitted by the Customer in accordance with the Customer’s instructions. Insofar as the Provider is of the opinion that an instruction from the Customer violates data protection regulations, it shall inform the Customer of this immediately. The Provider offers the Customer the encrypted transmission of data.
(8) Access data (user names and passwords) used for protected data access by the customer may not be made accessible to unauthorised third parties. Employees of the Provider may only obtain knowledge of the access data or access to data stored by the Customer if this is absolutely necessary for the fulfilment of this contract.
(9) Further obligations between the Customer and the Provider in matters of data protection shall be governed by the agreement on commissioned data processing.
§ 6 Availability in the case of a cloud-based solution
(1) The Provider promises regular operation 24 hours a day, 7 days a week with an availability of at least 99%. The only exception is a so-called maintenance time window, during which the software can be taken out of operation at short notice in order to rectify errors and carry out updates. This maintenance window is every Thursday 00:00-02:00 (CET).
(2) If urgent maintenance work is required that cannot be postponed until the next maintenance window and therefore requires immediate action, the customer shall be informed of the outage in writing by e-mail at least two hours in advance. Should this exceptional case occur, the customer will also be informed in writing after the maintenance work has been completed that the web service will be available again.
(3) Excluded from these agreements are downtimes whose technical faults are caused by the server farm and are therefore beyond the Provider’s control. However, the Provider guarantees to inform the Customer in writing immediately after becoming aware of such situations.
§ 7 Maintenance and further development in the case of a cloud-based solution
(1) The Provider shall continuously rectify errors and malfunctions that prevent proper utilisation of the agreed functions and services. The costs for this are covered by the flat rate, so that the customer does not incur any further costs.
(2) Individual further development or functional customisation is not covered by the flat rate. However, the Provider will be happy to prepare individual offers for new functions or customisations if required.
§ 8 Performance obligations of the customer – data connection, notification of defects, use by third parties
(1) The customer shall be responsible for establishing a data connection between the workstations intended for use by the customer and the data transfer point defined by the Provider. The Provider shall be entitled to redefine the data transfer point at any time if this is necessary to enable smooth utilisation of the services by the customer. In this case, the customer shall establish a connection to the newly defined transfer point.
(2) In the event of a malfunction of the software, the customer shall notify the Provider immediately, stating the detailed circumstances of the occurrence of the malfunction, its effects and possible consequences. If necessary, the customer shall make use of qualified employees for the notification.
(3) The customer is not authorised to make the software available to third parties for use. A third party is not anyone who utilises the services free of charge on behalf of the customer, such as employees of the customer, freelancers within the framework of a contractual relationship, etc. The customer is expressly prohibited from subletting the software.
(4) If access data is made available, the customer is obliged to store it carefully and to prevent it from being used by third parties.
§ 9 Performance obligations of the customer – reproduction and copyrights
(1) The customer may not duplicate the contractual software unless duplication is necessary for the use of the software. Necessary duplication shall only include the creation of copies of the software for the operation of the software instances specified in Annex 1.
(2) The customer may not make any further reproductions, including in particular the printing of the programme code – in any form whatsoever. The customer’s authorisation to reproduce the programme code under the conditions of Section 69e (1) UrhG remains unaffected. The right to reproduce the user manual is available to the customer without restriction.
§ 10 Performance obligations of the customer – changes 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 to customise the software to the Customer’s needs. The prohibition also does not apply to changes that are necessary for the elimination of errors if the Provider is in default with the elimination of the error, refuses to eliminate the error or is unable to eliminate the error – in particular due to the filing or opening of insolvency proceedings.
(2) The decompilation of the software provided is not permitted. Excluded from this are reproductions of the code or translations of the code form which are essential in order to obtain the information required to establish the interoperability of an independently created computer program with the provided software or with other computer programs, provided that the requirements specified in Section 69e (1) UrhG are met.
§ 11 Remuneration and payment modalities
(1) The Customer undertakes to pay the Provider an agreed flat-rate fee plus the additional transactions used, as well as the (currently) 19% VAT. The flat-rate fee covers the Provider’s services in accordance with §§ 1 to 5 of this contract.
(2) The customer has the option to increase the scope of services at any time. The Provider must be contacted for this purpose.
(3) For additional expenses that go beyond the services owed by the Provider in accordance with §§ 1 to 5 of this contract (e.g. implementation of instructions and training services, modification or customisation of the contractual software), the parties agree on an hourly fee of EUR 125.00 to EUR 150.00 depending on the package plus (currently) 19% VAT. The additional expenses shall be recorded and invoiced with an accuracy of quarter hours.
(4) The Provider shall invoice the customer for the contractually owed remuneration on a monthly basis. The invoice is due for payment within fourteen working days of receipt; if they are in arrears with the settlement of the invoice in accordance with § 286 Para. 3 BGB, we will charge a flat-rate default fee of EUR 40.
(5) The Provider is authorised to increase the remuneration for the services offered by it at its reasonable discretion (§ 315 BGB) for the first time 12 months after conclusion of this contract. The Provider is entitled to further increases in remuneration in accordance with § 315 BGB if the last price increase was at least 12 months ago.
§ 12 Contract term and cancellation
(1) The contract comes into force upon signature. The contract term is 12 months. It shall be automatically extended by a further 12 months in each case if it is not cancelled in writing by one of the contracting parties with a notice period of 4 weeks before the respective expiry date or if a different contract term is agreed in the offer.
(2) The customer is entitled to terminate the contract prematurely before the end of the contract term and without observing the cancellation period. In this case, the customer shall owe the Provider the sum of the monthly instalments still outstanding until the end of the regular contract term. This sum is due immediately.
(3) The right of cancellation for good cause remains unaffected.
(4) An important reason for the cancellation of this contract is in particular if
– the Provider grossly violates its obligations under §§ 1 to 7 of this contract
– the customer grossly violates its obligations under §§ 8 to 10 of this contract
– the customer fails to fulfil his obligation to pay remuneration in accordance with § 11 of this contract on two consecutive dates despite a reminder and the setting of a deadline. In this case, the full amount shall be due by the end of the term.
– the customer culpably violates the prohibition in § 8 of this contract to allow an unauthorised third party to use the software
– insolvency proceedings have been opened against the assets of a contractual partner or the opening of such proceedings has been rejected due to a lack of insolvency assets corresponding to the costs of the proceedings
– if the customer is indexed
(5) After expiry of the contract term, the Customer shall be obliged to delete the software and any copies thereof, in particular the number of software instances agreed in Annex 1, without delay and to confirm this to the Provider. All results of the software (extracted data, processed files, generated digital artefacts, etc.) shall remain unaffected by this and shall become the property of the Customer in full and without restriction.
§ 13 Defects and warranty
(1) The warranty provisions of §§ 535 ff. of the German Civil Code (BGB) shall apply with regard to the granting of the option to use the software in accordance with § 2 (1) of this contract and the data hosting in accordance with § 5 of this contract. BGB APPLY. The no-fault claim for damages pursuant to § 536a para. 1 Alt. 1 BGB is excluded.
(2) In the case of individual adjustments, §§ 631 ff. BGB of the contract for work shall apply. Otherwise, the provisions of service contract law (§§ 611 ff. BGB) shall apply.
(3) The customer is obliged to have the software and its functionality inspected by a qualified employee immediately after being granted the possibility of use and to report any recognised defects in writing by e-mail with a precise description of the error.
(4) If the customer fails to give notice, the software shall be deemed to have been approved, unless the defect was not recognisable during the inspection.
§ 14 Liability
(1) The Provider shall be liable for the careful and professional provision of its contractual services and their freedom from defects.
(2) Unlimited liability: The Provider shall be liable for intent and gross negligence. The Provider shall be liable for slight negligence in accordance with the Product Liability Act and for damages resulting from injury to life, limb or health of persons.
(3) Limitation of liability: The Provider shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the Customer may regularly rely (cardinal obligation). This limitation of liability also applies in favour of the Provider’s vicarious agents.
§ 15 Naming as a reference and press work
(1) The Provider is authorised to use the Customer as a reference without disclosing further details. The Provider shall use 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 the company’s own press work. If the Customer’s name is mentioned in a press article by the Provider, the Customer must agree to this use in writing prior to publication.
§ 16 Final provisions
(1) All amendments or additions to this contract must be made in writing in order to be valid.
(2) Should the contract contain invalid provisions, the validity of the remainder of the contract shall remain unaffected. The parties are obliged to replace the invalid provision with a valid provision that comes closest to the purpose of the contract, taking into account the economic interests of both parties. The same procedure shall apply if a loophole requiring supplementation becomes apparent during the execution of the contract.
(3) This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) The place of jurisdiction for all disputes arising from or in connection with this contract is Cologne.
