The General Terms and Conditions of evanto media GmbH.
§ 1 Scope
(1) evanto's General Terms and Conditions apply exclusively; conflicting or deviating terms of the Customer are not recognised by evanto unless evanto has expressly agreed in writing. evanto and the Customer agree that these terms also apply to all subsequent transactions.
Special agreements and side agreements only become valid when confirmed in writing by evanto. This also applies to amendments to the General Terms and Conditions and to the cancellation of this written-form requirement itself.
§ 2 Contract formation
(1) Offers from evanto are always non-binding and subject to confirmation, unless evanto expressly designates them as binding in writing.
(2) Contracts are concluded only upon written order confirmation or delivery by evanto.
(3) Where necessary, evanto is entitled to subcontract the delivery and services to third parties.
§ 3 Payment terms, default in payment
(1) All prices are exclusive of VAT at the statutory rate on the invoice date.
(2) Invoices are due for payment within 15 days of the invoice date without deduction.
(3) The Customer falls into default in accordance with § 286 BGB. If the Customer is in default, evanto is entitled to demand default interest at 5 % above the base interest rate (§ 247 BGB). If the Customer is not a consumer, evanto may demand default interest at 9 % above the base interest rate. If evanto can prove a higher loss caused by the default, evanto is entitled to assert it.
The Customer has rights of set-off only if its counterclaims are legally established or have been recognised in writing by evanto.
§ 4 Delivery, place of performance
(1) Compliance with agreed delivery dates presupposes the timely and proper fulfilment of any cooperation obligations of the Customer.
(2) The delivery period is met when the data is available to the Customer in electronic form. Data transmission may also occur via remote data transfer. The Customer receives the printed application documentation within one month after the electronic data is available.
(3) If non-compliance with an agreed delivery period is due to force majeure or other circumstances for which evanto is not responsible, the delivery period is extended by the duration of these events.
(4) None of the contracts concluded between evanto and its Customers is concluded as a fixed-date transaction.
(5) Unless agreed otherwise, the place of performance is the respective location of the Customer for which the services are intended.
§ 5 Acceptance
(1) The Customer is required to declare acceptance to evanto in writing. Acceptance presupposes a functional test of the software by the Customer, which must take place no later than fifteen days after evanto has notified the Customer of readiness for acceptance.
(2) If the Customer does not declare acceptance within the period specified in paragraph 1 sentence 2 and does not also specify any defects of the software in writing to evanto within this period, acceptance is deemed to have taken place. evanto undertakes to inform the Customer at the start of the period of the acceptance declared by their silence.
§ 6 Warranty
(1) It is acknowledged that it is not possible to develop software, internet-based systems, and related services so as to be free of defects for all areas of application.
(2) evanto warrants that the software covered by the contract is not affected by defects which eliminate or diminish its value or fitness for the use contractually agreed, presumed under the contract, or customary. An insignificant reduction in value or fitness is disregarded. The warranty does not cover defects based on faulty software components from another manufacturer not programmed by evanto.
(3) The warranty period is two years and begins with acceptance. This period is a limitation period and also applies to claims for compensation for consequential damages, unless claims are made on the basis of tort, for which the statutory limitation period applies.
(4) Defects not already listed in the acceptance declaration must be reported by the Customer to evanto immediately upon discovery (§§ 377, 378 HGB). The notice must be combined with a specific written description of the defect.
(5) evanto may initially provide warranty performance through subsequent performance. evanto has the choice between remedying the defect or producing new work. Defects properly reported before the end of the warranty period are remedied by evanto at its own expense. If a check shows that no defect is present, evanto may demand from the Customer compensation for the effort at its then generally calculated hourly rates (plus necessary expenses).
(6) If significant defects are not remedied by evanto within two weeks of receipt of a proper defect notice, the Customer may set a reasonable additional period with the declaration that they will refuse defect remedy after the end of this period. After expiry of the period, the Customer may withdraw from the contract or reduce the remuneration if subsequent performance has failed.
(7) The warranty does not apply if the Customer modifies or processes the software themselves without evanto's consent or has it modified or processed by third parties.
(8) The limitations on warranty do not apply in the case of malice or in the case of a written guarantee of the quality of the work assumed by evanto.
§ 7 Liability
(1) Liability of evanto — regardless of legal grounds — only arises where damage has been caused by culpable breach of an essential contractual obligation (cardinal obligation) in a manner endangering the achievement of the contractual purpose, or is attributable to gross negligence or intent on the part of evanto.
(2) If evanto is liable for the breach of an essential contractual obligation (cardinal obligation) without gross negligence or intent being attributable to it, liability is limited in amount to the contractually agreed remuneration and in scope to such damage as evanto could typically have expected to occur at the time of contract formation, given the circumstances known at that time. If evanto is liable under paragraph (1) for gross negligence or intent of employees who are not corporate organs or executives of evanto, liability is limited to the same amount.
(3) evanto is not liable for indirect damages, consequential damages, or lost profits, unless these are attributable to intent or gross negligence by corporate organs or executives of evanto.
(4) Notwithstanding paragraphs (1) to (3), evanto is liable for damages arising from injury to life, body, or health caused by negligent breach of duty by evanto or one of its vicarious agents.
(5) The exclusion or limitation of claims under the preceding clauses also applies to claims against employees and agents of evanto.
(6) Liability of evanto for a guarantee assumed by evanto or under the German Product Liability Act remains unaffected.
§ 8 Usage rights, reservation of rights
(1) Unless otherwise agreed in writing in an individual contract, the Customer receives a simple right of use of the contractual service to the extent required by the purpose of the contract.
(2) The following uses are expressly prohibited:
Making copies (reproductions), except in cases expressly permitted by law; temporarily transferring the modules to third parties, in particular renting, lending, leasing, and sub-licensing; decompiling, reverse engineering, or otherwise modifying (unless mandatorily permitted by copyright law); removing or altering copyright notices, serial numbers, or other features that serve to identify the program.
The above usage rights may be granted to the Customer after consultation with evanto for additional remuneration to be agreed in writing.
(3) The granting of usage rights to the contractual service is subject to the suspensive condition of full payment of the licence fee.
§ 9 Applicable law, place of jurisdiction, severability
(1) German law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes is Regensburg.
(2) Should any of these provisions be or become invalid, the validity of the remaining provisions is not affected.
Status: 01 January 2016