General Terms and Conditions of evanto media AG (evanto)
§ 1 Scope
**(1)**The general terms and conditions of evanto apply exclusively; conflicting or deviating conditions of the client are not recognized by evanto, unless evanto has expressly agreed in writing. evanto and the client agree that these conditions will also be the basis for all subsequent business.
Special agreements and side agreements are only valid if they are confirmed in writing by evanto. This also applies to changes to the general terms and conditions and to the lifting of this written form clause itself.
§ 2 Conclusion of contract
(1) Offers from evanto are always subject to confirmation and non-binding, unless they are expressly designated as binding by evanto.
(2) Contracts are only concluded with a written order confirmation or with delivery by evanto.
(3) If necessary, evanto is entitled to place orders with third parties to provide the delivery and services.
§ 3 Terms of payment, late payment
(1) All prices are exclusive of VAT at the statutory rate on the day of invoicing.
(2) Invoices are due for payment without deductions within 15 days of the invoice date.
(3) The client is in default of payment in accordance with § 286 BGB. If the customer is in default of payment, evanto is entitled to charge default interest at a rate of 5% above the base rate (§ 247 BGB). If the client is not a consumer, evanto may charge default interest of 8% above the base rate. If evanto can prove a higher damage caused by delay, evanto is entitled to assert this.
The client is only entitled to set-off rights if his counterclaims have been legally established or have been recognized in writing by evanto.
§ 4 Delivery, place of performance
(1) Adherence to agreed delivery dates presupposes the timely and proper fulfillment of all possible cooperation obligations of the client.
(2) The delivery deadline is met if the data are available to the customer in electronic form. The data can also be transmitted by remote data transmission. The client receives the application documentation printed out on paper within one month after the electronic data is available.
(3) If the non-compliance with an agreed delivery period is due to force majeure or other circumstances for which evanto is not responsible, the delivery period will be extended by the duration of these events.
(4) None of the contracts concluded between evanto and its clients is concluded as a fixed transaction.
(5) Unless otherwise agreed, the place of performance is the respective location of the client for which the services are intended.
§ 5 Acceptance
(1) The client must declare acceptance to evanto in writing. Acceptance requires a functional test of the software by the client, which must be carried out no later than fifteen days after evanto has informed the client that it is ready for acceptance.
(2) If the client does not declare the acceptance within the period specified in paragraph 1 sentence 2 and does not specify any defects in the software in writing to evanto within this period, the acceptance is deemed to have taken place. evanto undertakes to notify the client at the start of the period of the acceptance declared by his silence.
§ 6 Warranty
(1) It is recognized that it is not possible to develop software, internet-based systems and related services in such a way that they are error-free for all areas of application.
(2) evanto guarantees that the contractual software is free from defects that nullify or reduce the value or the suitability for the contractually agreed use, which is required under the contract or which is normal. An insignificant reduction in value or suitability is not taken into account. Defects that are based on the defectiveness of a software component from another manufacturer and that have not been programmed by evanto are excluded from the warranty. If a software component from another manufacturer is used, evanto will notify the client of this fact separately.
(3) The warranty period is two years and begins with the acceptance. The deadline is a limitation period and also applies to claims for compensation for consequential harm caused by a defect, insofar as no claims based on tort are asserted; the statutory limitation period applies to these.
(4) Defects that have not already been listed in the acceptance declaration must be reported by evanto to the customer immediately upon discovery (§§ 377, 378 HGB). The notification must be linked to a specific written description of the defect.
(5) evanto can initially provide warranty through supplementary performance. evanto has the choice of eliminating the defect or creating a new plant. Defects that are properly reported before the warranty period expires are eliminated by evanto at its own expense. If a check reveals that there is no defect, evanto can request reimbursement from the client based on the hourly rates that are then generally calculated (plus the necessary expenses).
(6) If significant defects are not remedied by evanto within two weeks of receipt of the proper notification of defects, the client can set a reasonable grace period with the declaration that he will refuse to remedy the defect after this period has expired. After the deadline, the customer can withdraw from the contract or reduce the remuneration if the supplementary performance has failed.
(7) The warranty is void if the client changes or processes the software himself or has it changed or edited by third parties without evanto's consent.
(8) The limitations of the guarantee do not apply to malice or to a written guarantee from evanto for the quality of the work.
§ 7 Liability
(1) Liability of evanto - regardless of the legal reason - only arises if the damage was caused by culpable violation of an essential contractual obligation (cardinal obligation) in a manner endangering the achievement of the contractual purpose or due to gross negligence or intent on the part of evanto is due.
(2) If evanto is liable for the breach of an essential contractual obligation (cardinal obligation) without gross negligence or intent, the liability is limited in amount to the contractually agreed remuneration and to the extent of the damage , which evanto typically had to expect when the contract was concluded due to the circumstances known at that time. If evanto is liable in accordance with paragraph (1) for gross negligence or intent on the part of employees who are not organs or executive employees of evanto, liability is limited to the same amount.
(3) evanto is not liable for indirect damage, consequential damage or loss of profit, unless this is due to intent or gross negligence on the part of organs or executive employees of evanto.
(4) Notwithstanding paragraphs (1) to (3), evanto is liable for damage resulting from injury to life, limb or health based on a negligent breach of duty by evanto or a vicarious agent of evanto.
(5) The exclusion or limitation of claims according to the preceding paragraphs also applies to claims against employees and agents of evanto. (6) Liability of evanto due to a guarantee assumed by evanto or according to the Product Liability Act remains unaffected.
§ 8 Rights of use, reservation of rights
(1) Unless otherwise agreed in writing in an individual contract, the customer receives a simple right to use the contractual service to the extent required by the purpose of the contract.
(2) The following uses are expressly prohibited:
The making of copies (reproductions), except in the cases expressly permitted by law; the temporary transfer of the modules to third parties, in particular renting, lending, leasing and further licensing; decompiling, reverse engineering or other changes (unless the copyright law provides otherwise); the removal or modification of copyright notices, serial numbers or other features serving to identify the program.
The above usage rights can be granted to the client after consulting evanto for an additional fee to be agreed in writing.
(3) The granting of rights of use to the contractual service is subject to the condition precedent of the full payment of the license fee.
§ 9 Applicable law, place of jurisdiction, partial nullity
(1) German law applies to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes is Regensburg.
(2) Should one of these provisions be or become ineffective, the effectiveness of the remaining provisions remains unaffected.
As of January 1st, 2016