General and Special Terms and Conditions of evoila GmbH
A. General conditions
1.1 These General and Special Terms and Conditions (“GTC”), as amended from time to time, shall apply to all present and future business relations between evoila GmbH, Bosch-Str. 36, 55129 Mainz (“evoila”) and evoila’s customers, i.e. entrepreneurs within the meaning of § 14 BGB (German Civil Code) (hereinafter “Customer”). Contracts with consumers in the sense of § 13 BGB shall be not concluded based on these GTC.
1.2 These GTC shall be deemed accepted at the latest upon acceptance of the agreed service. Deviating, conflicting or supplementary general terms and conditions or purchasing conditions of the Customer shall not become part of the contract unless their validity has been expressly agreed. This shall also apply if evoila does not expressly object to deviating terms and conditions of the Customer, even if these are attached to requests for quotations, orders or declarations of the Customer.
1.3 These GTC shall apply to all services and deliveries of evoila. Depending on the order, the special conditions in sections B to C shall apply in addition.
1.4 All goods and services of evoila are intended exclusively for the use of the Customer. If the Customer intends to supply the services provided by evoila to a consumer, entrepreneur or to a reseller who in turn supplies consumers or entrepreneurs with such goods, he must inform evoila of this.
1.4 evoila reserves the right to use subcontractors to fulfil the contract. The selection and supervision of these third parties is the responsibility of evoila.
2. Offers, conclusion of contract and prices
2.1 All offers are subject to change without notice and, in the case of deliveries, are subject to the proviso that evoila itself is supplied, unless evoila is responsible for the non-delivery or incorrect delivery. Evoila reserves the right to make technical changes, in particular changes in models, design, features, shape and/or colour and in the case of programmes in function due to technical developments. This shall not apply only if an offer expressly contains a binding and acceptance period or the corresponding letter is expressly marked as a “binding offer”.
2.2 Unless otherwise agreed by the parties in writing, the contract shall be concluded (a) upon receipt of the order confirmation by the Customer or
(b) at the time of the commencement of the contract stated on the contract (“Order Confirmation”); or
(c) with the acceptance of evoila’s “binding offer” by the Customer (in writing, by fax or e-mail),
(d) at the latest, upon delivery, provision and/or performance of the contractual services by evoila, whichever is the earlier.
2.3 The technical data, specifications or performance parameters contained in these GTC, the order or the performance specification of evoila shall be understood exclusively as quality specifications within the meaning of section 434 para. 2 sentence 1 no. 1 BGB (German Civil Code) and do not constitute an (independent) quality guarantee.
2.4 The current price list, to which reference is made in the offer documents, shall apply to services offered by evoila. All prices are net prices plus the valid statutory value added tax.
2.5 In the case of recurring remuneration, evoila is entitled to change the remuneration rates subject to the following principles:
(a) evoila may change recurring remunerations to a reasonable extent in each case with a notice period of two months with effect from January 1st of a calendar year by means of a written
adjustment declaration to the Customer in order to compensate for cost increases (e.g. wage costs), whereby the increase may not exceed 5 % (“Change Framework”).
(b) The first remuneration adjustment may be made at the earliest at the end of the first full calendar year in which the contractual relationship exists.
(c) If it is the first adjustment of the remuneration, the cost development between the time of the conclusion of the contract and the time of the adjustment declaration shall be decisive for the Change Framework. If a remuneration adjustment has already been made in the past, the Change Framework shall be determined by the cost development between the time of the previous adjustment declaration and the time of the new adjustment declaration.
(d) The Customer can object in writing within five weeks after the adjustment declaration. In this case evoila may terminate the contractual relationship within four weeks after receipt of the objection. The termination will take effect within two weeks, but at the earliest at the time of the intended increase in remuneration.
2.6 evoila offers so-called Pools of Days according to the current price list.
(a) The Customer may agree on Pools of Days with different quantities of Person Days or Full Time Equivalents. A Person Day (PD) always corresponds to a Full Time Equivalent (FTE) of 8 working hours and can also be provided by several persons, as long as a PD/FTE is provided in total.
(b) Pools of Days are only agreed on a project-by-project basis. An agreed Pool of Days can therefore only be used for projects that have been agreed for the Pool of Days.
(c) If the Customer has booked several Pools of Days for different projects, the Customer shall specify to which project the service request belongs for the avoidance of doubt. A service request must be made with a lead time of at least five working days, whereby Saturday and national holidays are not working days. Evoila is not obliged to commit resources of more than two FTEs per working day to a project; the Customer must take this into account when requesting services.
(d) Pools of Days are payable in advance. Unused PD/FTE expire twelve months after order. The date of performance by evoila is decisive. Deviating shall only apply insofar as the Customer has requested services under a Pool of Days in such good time that only due to a culpable delay on the part of evoila the services could not be provided within the twelve-month period and offset against the Pool of Days.
3. Service Level Agreements, fault classification
3.1 Unless otherwise agreed with the Customer as a part of a Service Level Agreement (SLA), the periods from Monday to Friday from 9:00 a.m. to 5:00 p.m. (with the exception of public holidays at the place of performance) shall be deemed service times. The specific service levels shall be agreed with the Customer individually.
3.2 If no response times have been explicitly agreed accordingly, fault rectification or maintenance services shall be commenced immediately after receipt of the corresponding message or occurrence of the agreed event within the agreed service times. If no recovery times have been agreed, the maintenance services shall be completed within a reasonable period of time.
3.3 In the case of maintenance services under a contract for work, a declaration of reinstatement shall be sufficient to meet the deadline if the work has been completed successfully and within the deadline, e.g. in the case of a fault rectification a declaration of operational readiness.
3.4 Unless otherwise agreed in the contract (SLA), a distinction is made between the following three fault classes:
(a) A fault that prevents operation exists if the use of the standard software is impossible or severely restricted (Prio 1).
(b) A fault that impedes operation exists if the use of the standard software is significantly restricted. A fault that impedes operation also exists if the slight faults as a whole lead to a not insignificant restriction in the use of the standard software (Prio 2).
(c) A minor fault exists if the use of the standard software is possible without restrictions or with insignificant restrictions (Prio 3).
4. Terms of payment, settlement
4.1 The Customer agrees that invoices can also be sent to him electronically. Evoila may also use messengers or representatives for invoicing. The invoice will be sent to the notified address, fax number or electronic address, unless the parties agree otherwise.
4.2 The Customer is obliged to settle the invoice amount without deduction within fourteen days of the invoice date, unless expressly agreed otherwise.
4.3 Fixed charges shall be invoiced monthly in advance, consumption-dependent charges at the beginning of the following month. If a monthly fee is to be paid for only part of a calendar month irrespective of consumption (fixed), it shall be calculated on a daily basis at 1/30 of the monthly fee.
4.4 After expiry of the payment period referred to in section 4.2, the Customer shall be in default of payment. During the period of default, the Customer shall pay interest at a rate of 9 percentage points above the base interest rate. Evoila reserves the right to claim further damage caused by default.
4.5 Insofar as the Customer
(a) is more than one (1) month unjustifiably in arrears with the payment of an invoice since the invoice due date; and
(b) even after an unsuccessful threat with a grace period of at least a further fourteen (14) days, does not make payment,
evoila is entitled, with reference to these legal consequences, to withhold the provision of the contractual services, or to discontinue them in whole or in part, or to block access, until payment is made in full.
4.6 Offsett against evoila’s claims shall be excluded unless the counterclaim with which offsetting is to be effected has been legally established or is undisputed; the same shall apply to the assertion of a right of retention by the Customer. The Customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
5. Performance times and obligations to cooperate
5.1 Delivery dates or other performance times shall only be binding if they are expressly agreed. Evoila shall only be in default with a delivery/service if a grace period set by the Customer, which is reasonable under the circumstances and which must be at least two weeks, has expired to no avail. Compliance with the delivery and service obligations also presupposes the timely and proper fulfilment of the necessary obligations to cooperate by the Customer.
5.2 If the provision of standard software has been agreed, it shall be delivered in accordance with the respective product description, unless otherwise agreed in the version valid at the time of delivery. Only the product description shall be decisive for the quality of the functionality of the delivered software; any quality of the software beyond this shall not be owed.
5.3 The Customer shall support evoila in the provision of the services to a reasonable extent. In particular, the Customer shall take reasonable precautions in the event that its own or supplied hardware and/or software does not work properly in whole or in part (e.g. by proper data backup, fault diagnosis, regular checking of results). In the absence of an explicit notice (in text form), employees of evoila may always assume that all data with which they may come into contact are properly backed up. The Customer bears any disadvantages and additional costs resulting from a breach of these obligations himself. As long as the Customer does not fulfil his obligations to cooperate or does not fulfil them in time or properly, evoila shall not be in default with the performance of the contractual services.
5.4 Unless otherwise agreed, the data protection incumbent on the Customer shall comprise all technical and/or organisational measures to ensure the availability, integrity, and consistency of the systems, including the data, programmes and procedures stored on these systems and used for processing purposes. Proper data protection means that the measures taken, depending on the data sensitivity, enable an immediate or short-term restoration of the state of systems, data, programmes, or procedures after a recognised impairment of the availability, integrity, or consistency due to a damaging event; the measures include at least the production and testing of the reconstruction capability of copies of the software, data and procedures in defined cycles and generations.
6.1 If the subject matter of the contract is an individual adaptation of standard software or the creation of individual software and if acceptance is agreed in the contract or provided for by law (in particular in the case of a contract for work), the following shall apply.
6.2 Evoila may demand and carry out partial acceptances for definable parts of the service which can be used independently or for parts on which further services are based, if the parts to be accepted can be tested separately. If all parts of the service have been accepted, the last partial acceptance shall also be the final acceptance.
6.3 After completed installation of the software or the customisation, the Customer shall carry out an acceptance of the software or the customisation services. The acceptance of the services requires a functional test. The functional test shall be deemed to have been successfully performed if the software or the customisation services meet the agreed requirements in accordance with the respective service description.
6.4 During the functional test, the Customer shall immediately notify any deviations occurring in the delivered adaptation services from the performance requirements. If the functional test is carried out successfully, acceptance shall be declared in text form without delay.
6.5 If the Customer does not declare acceptance in due time, evoila may set a reasonable period for the submission of the declaration. The creation or adaptation services shall be deemed to have been accepted on expiry of the period if the Customer neither declares acceptance nor states which defects still need to be remedied or if the Customer – irrespective of any period – uses the software or the adaptation services in operational use.
7. Contract term and termination
7.1 The term of the respective contractual relationship shall be regulated in the order. If no provision has been made in the order, a minimum contract term of 24 months shall apply to all contracts.
7.2 Unless otherwise agreed between the parties, the notice period for the contractual relationship shall be twelve (12) weeks to the end of the contract term. In case of doubt, each termination shall only be effective with regard to the respective named contractual relationship or individual order.
7.3 If the contractual relationship is not terminated in due time and unless otherwise agreed between the parties, the contractual relationship shall be extended by a further twelve (12) months at the end of the contract term.
7.4 The right of the parties to terminate the contract extraordinarily for good cause without notice shall remain unaffected. Good cause shall be deemed to exist in particular in the following cases:
(a) the Customer is in default with payments due of more than two (2) months;
(b) one of the contracting parties again breaches fundamental obligations of the contract after prior warning.
7.5 All terminations must always be in writing.
8. Intellectual property and rights of use
All rights and intellectual property to software and work results as a whole are and remain with evoila or with the respective software producer. No granting of rights is associated with the conclusion of the contract unless this is expressly agreed.
9.1 In all cases of contractual and non-contractual liability, evoila will pay damages or compensation for futile expenses in full only in the event of intent, gross negligence, injury to life, body or health and in the absence of a quality for which evoila has expressly given a guarantee.
9.2 In the event of slight negligence except clause 9.1, the following limitations of liability shall apply:
(a) Liability shall be limited to the amount of the foreseeable damage typical for such contract and to cases of breach of a substantial contractual obligation if the purpose of the contract is thereby endangered (so-called cardinal obligation).
(b) Loss of profit will not be compensated. In the event of a loss of data for which evoila is responsible, evoila shall only be liable for the expenditure typically required to restore the data in the event of proper data backup by the Customer. This liability only applies if the Customer has carried out a proper data backup immediately before the measure leading to the loss of data.
(c) evoila’s liability arising out of or in connection with the contract shall be limited for negligent conduct to the contract value, but not more than the total amount of EUR 100.000,00.
9.3 Liability without fault is excluded.
9.4 Claims under the Produkthaftungsgesetz (Product Liability Act) shall remain unaffected in any case.
9.5 The above limitations of liability also apply to the personal liability of the employees, vicarious agents, and legal representatives of evoila and of the companies affiliated with evoila pursuant to section 15 et seq. AktG as well as their employees, vicarious agents, and legal representatives.
9.6 In the event of liability due to intent, gross negligence, personal injury or under the Produkthaftungsgesetz (Product Liability Act), the statutory limitation periods shall apply. Otherwise, a limitation period of one year shall apply to all claims for damages or compensation for futile expenses of the Customer in the case of contractual and non-contractual liability. The beginning and calculation of the limitation period shall be governed by the statutory provisions.
10. Data protection and confidentiality
10.1 The contracting parties undertake to comply with the provisions of data protection law, including the provisions of the Bundesdatenschutzgesetz (BDSG, Federal Data Protection Act) and the General Data Protection Regulation (GSDPR).
10.2 Insofar as there is any commissioned data processing by one of the contracting parties in connection with the contract, the contracting parties shall conclude a data processing agreement in accordance with the requirements of Art. 28 GDPR and attach it to the contract as a separate annex.
10.3 Both contracting parties undertake to use all knowledge of trade and/or business secrets of the respective other party obtained upon performance of the contract only for the implementation of this contract and to treat it confidentially beyond the term of the contract. Both contracting parties shall also oblige their employees to maintain confidentiality.
11. Force majeure
11.1 In cases in which the performance of a contractual service, cooperation or provision is not possible or reasonable for one party due to force majeure, there shall be no claims for damages or other claims or rights (including rights, objections or defences) of the respective other party.
11.2. Force majeure is defined as any event for which neither party is responsible and which cannot be averted even by exercising the utmost reasonable care, which prevents the party concerned from the performance of the contractual services, cooperation or provision services in whole or in part, in
particular pandemics (also COVID 19), natural events, power and line failures which are not within the sphere of influence of evoila, in cases of arson, vandalism, burglary, sabotage, strikes or lawful lockouts as well as comparable events.
12. Non-Solicitation Aagreement
12.1 During the period of cooperation between the parties and for a period of two years thereafter, the Customer undertakes not to actively entice any employees away from evoila or to have them enticed away by third parties who, in order to carry out the contract, repeatedly work on the customer’s premises or are otherwise involved in the customer’s business. For each case of culpable infringement, the customer undertakes to pay a contractual penalty to be determined by evoila and, in the event of a dispute, to be reviewed by the competent court, of up to €75,000.
12.2 Likewise, during the aforementioned period the Customer undertakes not to entice any other employees away who work for evoila for the performance of this contract with the customer or to employ such employees – including those mentioned in paragraph 1 – without evoila’s consent. For each case of culpable infringement, the customer undertakes to pay a contractual penalty to be determined by evoila and, in the event of dispute, to be reviewed by the competent court, of up to 40,000 €/.
12.3 The assertion of a claim for damages in excess of the contractual penalty shall remain unaffected. The contractual penalty shall be offset against such a claim for damages.
13.1 Evoila is entitled, considering data protection and confidentiality, to name the service provision on which the contract is based as a reference project, mentioning the Customer by name.
13.2 The Customer may transfer rights and obligations under this contract to third parties only with the prior written consent of evoila.
13.3 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.4 The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is Frankfurt am Main, provided that the Customer is a merchant, a legal entity under public law or a special fund under public law. The same shall apply if the Customer does not have a general place of jurisdiction in the Federal Republic of Germany or if the customer’s place of residence or habitual abode is unknown at the time the action is brought.
13.5 Unless otherwise agreed, the place of performance for all services to be provided by evoila is the registered office of evoila.
13.6 Should individual provisions of the contract with the Customer or individual provisions of these GTC be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same shall apply if a gap should subsequently become apparent in the execution of the contract or in these GTC. In this case, the statutory provisions shall apply instead of the invalid provision.
13.7 Verbal subsidiary agreements shall not become part of the contract unless the parties have mutually waived the text form requirement in text form. Amendments and supplements to the contract must always be made in text form to be effective. This also expressly applies to a waiver of the text form requirement itself. Proof of a supplementary or amending side agreement is permissible.
13.8 This English language version of the GTC is a translation of the German language version of the GTC, which is the only binding version. The Customer may request the German language version of the GTC from evoila at any time.
B. Special Conditions Hosting and Managed Services
14. Subject matter of the contract
14.1 The subject matter of the contract is the temporary provision of a hosted and/or decentralised IT environment for the Customer in evoila’s data centres and the provision of related services.
14.2 The (a) installation; (b) customer-specific adaptations and customising as well as (c) instructions, training and other consulting and maintenance services shall only be part of the owed subject matter of the contract if the parties agree accordingly.
14.3 Unless otherwise agreed, evoila guarantees an annual average availability of 97.5%. Insofar as regularly planned and unplanned maintenance is necessary for the ongoing operation, during which the services are not available, corresponding maintenance windows will be defined. The Customer will be informed of this in good time. Maintenance windows will be agreed for periodic or planned maintenance on evoila’s systems, which is necessary, for example, for the preservation and safety of ongoing operation or the implementation of updates or upgrades. Such work shall be considered as agreed service time and possible impairments of availability resulting from this shall not be assessed as downtimes.
14.4 The guarantee of the customer’s access to the “Internet” or of the operation of data lines or data networks as parts of the Internet is not owed by evoila.
15. General rights and obligations of the Customer
15.1 The Customer is obliged not to misuse the IT environment and the associated services, not to incorporate, use, or store any data and content that violates legal provisions, and not to infringe any third-party property rights or copyrights or other rights of third parties.
15.2 Evoila shall be indemnified against all claims of third parties based on the unlawful use of the IT environment, in particular the hosting environment, by the Customer or be made with his approval. This includes claims under data protection law, copyright law, or other claims of third parties associated with the use. If the Customer finds or should have found that such a violation is imminent, he is obliged to immediately cease and eliminate, or, if necessary, to inform evoila.
15.3 The Customer is obliged to treat the access data (in particular user names and passwords) confidentially and to keep them secret from unauthorised third parties. The Customer shall take appropriate internal measures to ensure that the access data are not passed on to unauthorised third parties.
15.4 If there is sufficient suspicion of a breach of the Customer’s obligations in the aforementioned paragraphs, evoila may, in case of imminent danger, temporarily block the affected service (e.g. affected websites) and/or back up the affected data until the matter has been clarified. Evoila is not obliged to check for illegal contents of the Customer. The blocking is in any case to be limited to the allegedly infringing contents and services, as far as technically possible and reasonable. The Customer is to be notified immediately of the blocking, stating the reasons, and requested to remove the allegedly illegal content, to take the more necessary security and documentation measures himself, or to state and, if necessary, prove the legality to the rights holders or authorities.
15.5 The blocking of the service does not lead to the loss of evoila’s entitlement to remuneration.
15.6 If the Customer itself administers or sets up or distributes rights of use for software (licences) on the servers and/or the hosting environment, he is exclusively obliged to ensure correct licensing.
16. Rights of use
16.1 Insofar as the provision of licensed software is required for the provision of contractual services, evoila – in the absence of an agreement to the contrary – grants the Customer, subject to the complete and timely payment of the agreed remuneration, a simple (non-exclusive) right to use own and third- party software provided, limited in time to the term of the contract and not subject to sub-licensing, for the territory of the Federal Republic of Germany.
16.2 In the absence of an agreement to the contrary, the making of copies and the passing on, reproduction, sale and transfer or sublicensing is only permitted with the prior consent of evoila.
16.3 Further use after termination of the contract is not permitted; copies of software provided shall be deleted by the customer after termination of the contract.
16.4 If and to the extent that open source software (OSS) is used, the respective valid licence conditions of the provider of the software shall also apply. Evoila will make these available to the Customer on request, insofar as there is no obligation in the licence provisions to point out them anyway.
16.5 In all other respects, the licence conditions of the respective software producer/third party providers and, if relevant, the producer- or software-specific additional conditions of evoila shall apply.
16.6 In the event that the subject matter of the contract includes services that are subject to a so-called service provider licence agreement between a software producer/third party provider and evoila, the parties shall sign the corresponding special agreement and attach it to the contract as an annex.
17.1 In case of doubt, service contract law shall apply. If the respective individual contract does not concern services, the following shall apply with regard to defects.
17.2 In the case of defects (material or legal defects), the relevant statutory provisions shall apply unless the following provisions provide otherwise.
17.3 In the case of defects in evoila’s performance, the Customer will report these without delay, providing the relevant information for the identification of the defect. If evoila is not able to remedy the defect, evoila will show the Customer possible ways of avoiding the defect. As far as these are reasonable for the Customer, they are considered as cure.
17.4 If the cure fails even after two attempts to repair the defect, the Customer may, at his discretion, demand a reduction of the remuneration (reduction of price) or rescission of the contract (revocation). In the case of only a minor defect or only a minor deviation of the actual quality from the agreed target quality, the Customer shall not be entitled to revoke the contract.
17.5 If the Customer chooses the right to revoke the contract due to a legal or material defect after a failed cure, he shall not be entitled to any additional claim for damages due to the defectiveness.
17.6 The warranty period shall begin with the operational provision and shall be one (1) year.
17.7 The strict liability for initial defects according to section 536a BGB (German Civil Code) is excluded as far as it does not concern a quality assured by evoila (guarantee, section 276 para. 1 BGB).
17.8 Warranty claims shall lapse if the Customer attempts to repair the defective items himself or has them repaired by third parties, unless the Customer proves in the individual case that such actions were not partly responsible for the defectiveness.
17.9 For the performance of purely service contracts, e.g. consulting or support, the law does not provide for any warranty for freedom from material and legal defects, so that in this respect the statutory provisions of the general law on breach of contract (section 280 et seq. BGB) apply instead of the aforementioned warranty provisions, unless deviated from in this contract.
17.10 Priority fault rectification obligations and periods in Service Level Agreements (SLA) shall remain unaffected by the above provisions.
C. Special Conditions Software Purchase
18. Quality of software
18.1 Unless expressly agreed otherwise, the subject matter of the contract is standard software. Delivery contracts for software are therefore purchase agreements. There shall be no claim to surrender or disclosure of the source code.
18.2 In the case of standard software from third parties, evoila will supply the Customer with the original user documentation from the producer. evoila is not obliged to deliver any additional documentation. On request, the Customer may inspect the original user documentation to be supplied before the contract is concluded. Otherwise, the documentation will be supplied with the software as online help. Any additional documentation is only owed if agreed separately.
18.3 If evoila is obliged to install software, the Customer shall ensure that requirements on the hardware and the other environment communicated to him are met.
19.1 If the subject matter of the respective individual contract is the adaptation or delivery of standard software or the development of individual software, the following shall apply with regard to defects.
19.2 In the case of defects (material or legal defects), the relevant statutory provisions shall apply unless the following provisions provide otherwise.
19.3 The agreed quality of the software to be developed or delivered or the customisation services shall be the performance description in the respective specification sheet, if such a specification sheet has been created; in the case of standard software, the product description shall apply in all other respects.
19.4 If defects occur in the software and other services delivered by evoila, the Customer will report them without delay, providing the relevant information for the identification of the defect. If evoila is not able to remedy the defect or to deliver a new product free from defects, evoila will show the Customer possible ways of avoiding the defect. As far as these are reasonable for the Customer, they are considered as cure.
19.5 If the cure fails even after two attempts to repair the defect, the Customer may, at his discretion, demand a reduction of the remuneration (reduction of price) or rescission of the contract (revocation). In the case of only a minor defect or only a minor deviation of the actual quality from the agreed target quality, the Customer shall not be entitled to revoke the contract.
19.6 If the Customer chooses the right to revoke the contract due to a legal or material defect after a failed cure, he shall not be entitled to any additional claim for damages due to the defectiveness. However, if the Customer chooses to claim damages after cure has failed, the delivered software shall remain with the Customer insofar as this is reasonable for him.
19.7 The warranty period shall begin with the delivery of the software to be delivered or with the acceptance of the software to be developed or adapted and shall be one (1) year.
19.8 Insofar as tenancy law is applicable to the contract, e.g. in the case of the provision of standard software for a specific term, the strict liability for initial defects pursuant to section 536a BGB (German Civile Code) is waived.
19.9 Warranty claims shall lapse if the Customer attempts to repair the defective items himself or has them repaired by third parties, unless the Customer proves in the individual case that such actions were not partly responsible for the defectiveness.
19.10 For the performance of purely service contracts, e.g. consulting or support, the law does not provide for any warranty for freedom from material and legal defects, so that in this respect the statutory provisions of the general law on breach of contract (section 280 et seq. BGB) apply instead of the aforementioned warranty provisions, unless deviated from in this contract.
19.11 Priority fault rectification obligations and periods in Service Level Agreements (SLA) shall remain unaffected by the above provisions.
20. Rights of use
20.1 Rights of use shall not pass to the Customer until payment has been made in full. Insofar as usage options are granted before full payment, these are revocable at any time.
20.2 Unless otherwise agreed, the Customer is granted the following rights of use to standard software for the territory of the Federal Republic of Germany:
(a) The Customer may only use standard software that is the subject matter of the contract to the extent specified in the contract. The Customer receives the right of use for an unlimited period of time in the case of a purchase agreement, and for the contractually agreed period of time in the case of a lease agreement. Whether standard software is provided according to a purchase agreement or a lease agreement must be determined individually within the contract.
In deviation from this, the purchase of the necessary licences may also constitute an obligation to provide on the part of the Customer; in this case, the scope of the rights of use shall be determined exclusively by the agreements between the Customer and the software producer or distributor.
(b) The principal may use standard software that is the subject matter of the contract only for the purpose of processing its internal business transactions. Rights to reproduce software are granted only to this extent. All rights going beyond this, in particular the right to distribute including renting, translating, editing, arranging and making the standard software publicly available, shall remain exclusively with the contractor or any third-party provider.
(c) If individual software (e.g. an app) is to be created based on the respective contract according to the individual specifications of the Customer, further rights of use and exploitation may be granted in this respect. In this case, the scope of the specific granting of rights shall be determined in the individual contract. Without a separate explicit provision in this respect, an editing right shall not be granted. Without an explicit provision, the surrender of the source code is not owed.
(d) Any rights of use shall only be granted after full payment of the respective agreed remuneration.
(e) The above provisions shall apply mutatis mutandis to software created or modified under a maintenance contract (including updates and upgrades of the software to be maintained).
(f) The statutory minimum rights of the user pursuant to section 69d UrhG (Act on Copyright and Related Rights) shall remain unaffected by the above provisions.
20.3 In all other respects, the licence conditions of the respective software producer/third party providers and, if relevant, the producer- or software-specific additional conditions of evoila shall apply.
20.4 In the event that the subject matter of the contract includes services that are subject to a so-called service provider licence agreement between a software producer/third party provider and evoila, the contracting parties shall sign the corresponding special agreement and attach it to the contract as an annex.