(1) Evocom Informationssysteme GmbH (hereinafter referred to as Evocom) grants the customer the use of his services or software for a defined period of time in accordance with the present conditions.
(2) The service or software is operated by Evocom as a SaaS solution in the Microsoft Azure Cloud. Users use the software over the Internet (productivity.evocom.net) during the term of the contract.
(3) For the business relationship between Evocom and the customer in natue as a company, the following general terms and conditions of use apply exclusively in the version valid at the time of the order. Deviating general terms and conditions of the customer are not recognized unless Evocom expressly agrees to their validity in writing.
(4) The customer is an entrepreneur, insofar as he acts as a natural or legal person or a legal partnership, when concluding the contract in the exercise of his commercial or independent activity.
2. Subject matter of regulation
(1) On the basis of the present conditions, Evocom provides the customer with the use of its software as a service in the current version for a period of time limited to the contract period.
(2) The type and nature of the software as well as the system environment required to operate the software can be found in the order form. The current range of functionality of the software also results from the current service description, available on the Evocom website.
(3) An individual adaptation of the software to the needs of the customer is not owed and the need for a separate agreement.
3. Useage of the software as a service
3.1 Registration and conclusion of contract
(1) Users access the service by registering on one of the Evocom websites. Each user may only register once with the company address. Users are not allowed to use private accounts (email addresses).
(2) By registering, a usage contract is concluded between the customer and Evocom. Evocom can initially enable the customer to use it free of charge (trial period). After the expiry of the period, the customer pays the usage fee for a defined period (usually 1 year) in advance or Evocom can refuse further use and eliminate access.
3.2 Prices and payment
(1) Unless otherwise agreed between the parties, licensing takes place in the named user license model. In this context, a certain number of registered users within the customer’s company is determined between the parties. The registered users are given the right to use the service / software in full (human access). The new creation or other inclusion of elements from third-party systems and / or access via such third-party systems (digital access) requires separate licensing.
(2) The content and number of subscriptions acquired are based on the information provided in the order form.
(3) The customer has the option of expanding the number of subscriptions purchased within the term of the contract. Unless otherwise agreed, the term of the subscription extensions is limited to the end of the underlying contract term. The present conditions apply.
(4) Users use the service via the intended user interfaces of Evocom. Evocom does not guarantee the use of the Evocom API by third parties and is not responsible for the activities of third parties or their services.
3.3 Scope of usage rights, restrictions
(1) With full payment of the contractually owed fee, the customer receives the non-exclusive, non-transferable and non-sublicensable right to use the software for the intended purpose of the contract.
(2) The use of the software for the purpose of designing own products or services is prohibited. The exclusive marketing right lies with Evocom.
(3) If the customer violates one of the above provisions, all rights of use granted under this contract become immediately ineffective and automatically fall back to Evocom. In this case, the customer must immediately and completely stop using the software.
3.4 License check, audits
(1) The customer is responsible for ensuring that the software is used in accordance with the contract. If there is sufficient evidence to suggest that the software is being used contrary to the contract, the customer has to provide an updated list of all non-registered users in anonymized form for the purpose of checking possible subsequent licensing and to hand it over to Evocom.
3.5 Remuneration, due date
(1) The fee for use is based on the number of end users in the operation of the respective organization specified in the order form. The organization also includes affiliated companies in which the organization is involved.
(2) The agreed annual fee is due for payment one year in advance in the first month of the rental period with full provision of the software. The default interest is eight percent (8%) above the applicable base rate.
4. Warranty, maintenance
4.1 Further development
(1) Evocom continuously develops the software, corrects any errors and extends functions. The customer receives updated software packages at appropriate intervals and updates the respective systems in acceptable time.
(1) Evocom warrants that the contractually agreed quality of the software will be maintained during the term of the contract and that the contractual use of the software will not conflict with any third party rights. Evocom will remedy reproducible defects in the software in a reasonable time. If rectification is not possible or reasonable, the defect is eliminated using a workaround.
(2) The customer is obliged to notify Evocom immediately in writing of any defects in the software after their discovery. In the case of material defects, this is done by describing the time at which the defects occurred and the more detailed circumstances.
(1) Evocom points out that restrictions or impairments of the software or the service may arise which are beyond Evocom’s sphere of influence. This includes in particular actions or events at third parties that Evocom is not responsible for (e.g. latencies or system failures in the IT infrastructure). If such circumstances influence the availability or functionality of the software, this has no effect on the contractual conformity of the services provided by Evocom. Evocom assumes no liability for any impairments to the use of the software, the cause of which is not due to the software itself but to malfunctions or changes in the customer’s system environment or infrastructure or third party applications.
5. Protection of the software, cooperation obligations
(1) The customer is obliged to secure the service / software by suitable measures against access by unauthorized third parties.
(2) The customer is responsible for protecting the data in the software application.
6. Confidentiality, data protection
(1) The parties agree to keep confidential information confidential. This obligation continues even after the contract has ended. Confidential information within the meaning of these conditions is all information made available in oral, written and electronic form. Above all, presentations, corporate concept and business model, business and planning data, customer data, company secrets as well as the knowledge and results gained and evident from this and exchanged know-how. It is immaterial whether documents or other carrier media were created by the information provider, recipient or others, provided that they embody information that relates to the information provider.
(2) Such confidential information is exempt from this obligation,
a) which the recipient was demonstrably already aware of when the contract was concluded, or which would subsequently become known to a third party without violating a confidentiality agreement, legal regulations or official orders;
b) which are publicly known when the contract is concluded or are made public thereafter, unless this is due to a breach of this contract;
c) which must be disclosed due to legal obligations or on the orders of a court or an authority. To the extent permissible and possible, the recipient who is obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.
(3) The parties will only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been required to comply with the confidentiality obligations of this contract. Furthermore, the parties will only disclose the confidential information to those employees who they need to know in order to fulfil this contract, and will also oblige these employees to maintain confidentiality to the extent that is permitted by employment law after their departure.
(4) The parties observe the relevant data protection regulations and will implement and comply with all measures required by data protection law.
(1) Evocom is liable without limitation in the event of intent or gross negligence, for injury to life, limb or health, in accordance with the provisions of the Product Liability Act and to the extent of a guarantee assumed by Evocom.
(2) In the event of a slightly negligent breach of an obligation that is essential for the achievement of the purpose of the contract (cardinal obligation), Evocom’s liability is limited in amount to the damage that is foreseeable and typical of the type of business in question. Liability is limited to a maximum of 10% of the order value per claim.
(3) Evocom has no further liability.
- To the extent permitted by law, there is in particular no liability for
- Indirect damage and consequential damage
- Damage due to data manipulation or data loss due to unauthorized access and use of the software.
(4) The above limitations of liability also apply to the personal liability of Evocom employees, representatives and organs.
8. Term and termination
(1) The term of the contract is 12 months (1 year) and is automatically extended by another year, provided that the contract is not terminated by one party within a period of one month from the expiry of the contract term. The cancellation can be made by email with confirmation of receipt or letter with declaration of acceptance.
(2) The right of both parties to terminate the contract for an important reason remains unaffected. An important reason is in particular if
- It is not reasonable to continue the contract until the notice period has expired
- In the event of non-compliance with legal regulations
- Evocom’s rights of use are violated by the fact that he uses the software beyond what is permitted under this contract and does not remedy the violation within a reasonable period of time after Evocom’s warning.
- The annual fees to be paid in advance are not paid in full and in time.
(3) If the contract is terminated, the claim to repayment of fees and charges already paid in advance lapses.
9. Concluding Provisions
(1) The customer may only transfer rights and obligations from or in connection with this contract to third parties with Evocom’s written consent.
(2) Offsetting is only permitted against undisputed or legally established claims of the licensor.
(3) Changes and additions to these contractual conditions must be in writing. This also applies to the change or cancellation of this clause.
(4) The parties are aware that the software service may be subject to export and import restrictions. In particular, there may be approval requirements or the use of the software or related technologies may be restricted abroad. The customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfillment of the contract by Evocom is subject to the condition that there are no obstacles due to national and international regulations of export and import law as well as no other legal regulations.
(5) Should individual provisions of these contractual conditions be or become ineffective, the effectiveness of the remaining provisions is not affected by this. The parties undertake to replace ineffective provisions with those that come as legally permissible as possible in economic terms to the ineffective provisions.
(6) The law of the Federal Republic of Germany applies. The exclusive place of jurisdiction is Stuttgart.