1. scope of application
1.1 The following General Terms and Conditions (hereinafter referred to as GTC) of Evalea GmbH, Hanauer Landstraße 521, 60386 Frankfurt am Main (hereinafter referred to as Evalea) apply to the use of the Internet-based service for the development of employees. Within the scope of the contractual relationship with Evalea users are granted the technical possibility and authorization to access the software hosted on a server of Hetzner Online AG in Nuremberg via the Internet and to use the service within the scope of these terms and conditions.
1.2 For all first-time, current and future transactions to be concluded or concluded with Evalea the following conditions apply exclusively. Evalea does not recognize any terms and conditions of the user that deviate from the present Terms and Conditions. They will not become part of the contract even if Evalea does not expressly contradict them.
1.3 Evalea addresses its software solution exclusively to entrepreneurs in the sense of the legal regulation of §14 (1) BGB.
2.1 The use of the software requires the user to register. When registering, the user is obliged to provide truthful, current and complete information in accordance with the registration form and to keep his details up to date at all times. The user warrants that all data and contents transmitted to the company are correct, legally admissible and free of third party rights. The use of pseudonyms is not permitted.
2.3 The user is aware that he/she may receive legal declarations (e.g. amendments to the GTC, invoices or other notifications) by e-mail. These are considered received when they can be called up under normal circumstances in the e-mail box of the e-mail address which the user has given during registration.
2.4 After registration, a personalized user account is set up for each user. For this purpose, the user must choose a user name and password (hereinafter referred to as access data) during registration and provide the information required to use the system.
3. conclusion of contract
3.1 The subject matter of the contract results from these General Terms and Conditions and from the regulations made in the service descriptions and price lists.
3.2 By users selecting a package for the use of the paid software during or after the end of the test phase or free membership, a contract for the selected package is concluded. With the end of the test phase, the package-bound contract period begins.
3.3 Evalea will activate the user’s access account within a reasonable time after the order and send the corresponding invoice. Regarding the payment modalities, please refer to clause 8.
4. right of use
4.1 The user receives the non-exclusive right, limited to the term of this contract, to access the software via the Internet and to use the functionalities associated with the system in accordance with this contract. The user does not receive any further rights, in particular to the software and its technology.
4.2 The right of use mentioned under (1) includes new versions and updates of Evalea developed during the term. However, there is no right to further development of the software.
4.3 The user is not entitled to use the software beyond the use permitted under this contract, to have it used by third parties or to make it accessible to third parties. In particular, users are not permitted to duplicate, sell or temporarily transfer the system or parts thereof, and in particular not to rent or lend it.
4.4 The user is prohibited from actions that are likely to impair the functionality of the services of Evalea, the application and infrastructure (e.g. scripts, robots, crawlers), as well as actions that violate legal and official regulations and infringe the rights of third parties
5. data protection and data security
5.1 Both parties shall observe the respective applicable data protection regulations, in particular those valid in Germany, and oblige their employees employed in connection with the contract to maintain data secrecy, unless they are already generally obliged to do so.
5.2 If the user himself or through Evalea collects, processes or uses personal data, he guarantees that he is entitled to do so according to the applicable, especially data protection regulations and is liable to the provider for damages that arise from a violation by the customer.
5.3 The application, server and operating software as well as other system components of the evaluation system are operated in the computer center by third parties. Evalea may subcontract, but must impose appropriate regulations on the subcontractor.
5.4 Evalea takes the technical and organizational security measures and measures to protect the data.
5.5 Further details on data protection are regulated in the data protection regulations.
6. duties and obligations of the user
The user shall fulfil the obligations concerning the performance and handling of this contract. In particular he will
6.1. pay the agreed prices on time. For each debit note not redeemed or returned, the user must reimburse Evalea for the costs incurred to the extent that he is responsible for the event that caused the costs;
6.2. to protect the access data assigned to him/her from access by third parties and not to pass them on to unauthorized users. Accordingly, the user is fully responsible for all activities carried out by third parties who have received access to his or her access data;
6.3. ensure that all industrial property rights and copyrights (e.g. when transferring data of third parties to servers of Evalea) are respected;
6.4. obtain the necessary consent of the respective data subject, provided that he or she collects, processes or uses personal data in the course of using the software and that no legal permission is granted;
6.5. not to misuse the system or allow it to be misused, in particular not to transmit any information offers with illegal or immoral content or to refer to such information that serves to incite the people, incite criminal offences or glorify or trivialise violence, is sexually offensive or pornographic, is likely to seriously endanger children or young people morally or impair their well-being or could damage the reputation of Evalea;
6.6. refrain from attempting to access information or data without authorization, either themselves or through unauthorized third parties, or to interfere or allow to interfere with programs operated by Evalea or to penetrate the data networks of Evalea without authorization;
6.7 Indemnify Evalea from all claims of third parties that are based on an illegal use of the services by the user or that are made with the user’s approval. If the user recognizes or must recognize that such a violation is imminent, he or she is obliged to inform Evalea immediately.
7. use contrary to contract
7.1 Evalea has the right to block access to the platform and its data in case of illegal violation of one of the essential obligations defined in this contract by the user. Access will only be restored when the violation of the affected essential obligation has been permanently eliminated or the risk of recurrence has been ensured by issuing an appropriate, punishable declaration of discontinuance to Evalea. In this case, the user remains obliged to pay outstanding invoices.
7.2 Evalea is entitled to delete the affected data in case of a violation of 6.3, 6.4 or 6.5.
7.3 If in cases 7.1 and 7.2 there is a culpable violation by the user, the user is obliged to pay damages. The compensation is to be set higher or lower if Evalea proves a higher damage or the user proves a lower damage; the user can also prove that there is no damage. Evalea reserves the right to assert other claims for damages.
8. terms of payment
8.1 Evalea will invoice the user electronically or by mail to the address given by the user. Unless otherwise stated or unless sales tax is legally not applicable, prices are exclusive of statutory sales tax.
8.2 The fee for the use of the software is to be paid in full in advance for the booked period or volume, starting on the day of operational availability.
8.3 Other prices are payable after the service has been provided.
8.4 If payment is made by invoice, the invoice amount must be credited to the account specified in the invoice no later than fourteenth day after receipt of the invoice. Evalea reserves the right to otherwise block the user’s account and to provide further services only after the outstanding payment has been made. If an invoice cannot be collected for reasons for which the user is responsible, the user bears the resulting costs.
8.5 The user is obliged to keep the personal data required for the selected payment method always up to date in order to ensure smooth payment processing.
8.6 Unless otherwise agreed, fees and other costs incurred by the payment of the fee (e.g. transfer fees) are to be borne by the user.
9.1 During a delay in payment of the user, which extends over more than two weeks, in a not insignificant amount, Evalea is entitled to block access to the system until the open invoice amount is settled. In this case the user remains obliged to pay the invoice.
9.2 If the user defaults on payment of the fee in a period of more than two months, Evalea has the right to terminate the contract without notice and to demand a lump-sum compensation due immediately in one sum
9.3 Evalea reserves the right to assert further claims for default of payment.
9.4 If Evalea is in default with the operational provision, liability is governed by 12. The user is only entitled to terminate the contract according to § 543 para. 2 sentence 1 no. 1 BGB (German Civil Code) if the user sets Evalea a reasonable grace period and Evalea does not meet it.
10. termination / deletion of the user account
10.1 The user packages of the Premium category are automatically extended by their agreed term if the user does not cancel in writing (in writing or by e-mail) before the end of the month, observing a period of notice of two weeks to the end of the month. The notice of termination is to be addressed to:
Hanau country road 521
60386 Frankfurt am Main
10.2 After the end of the contract due to termination or expiration, Evalea will close the user’s account. The user can close his or her user account at any time, even before expiry, by requesting Evalea to delete it in writing or by e-mail; however, deletion does not release the user from any contractual obligations.
10.3 After closing the user account, Evalea will delete all related user data within a few days, but with the exception of the contract-relevant data and not before the contract has been processed or the booked package has ended. After termination the user can no longer access his/her user account and, if applicable, cannot use other analyses.
11. availability and malfunctions
11.1 Evalea reserves the right to adjust the services offered and the corresponding prices at any time. There is no right to retain certain (partial) services beyond the agreed period of use. If such a change of the service offer is planned, the user will be informed about it with a reasonable period of time. Changes to a chargeable service or to the price due for it during the agreed period of use are only permissible if they do not restrict the services for the user.
11.2 Evalea has the right to temporarily interrupt or restrict access to the system for maintenance work. The user does not have to be informed about these works.
11.3 Evalea has to eliminate disturbances immediately within the framework of technical and operational possibilities. The user is obligated to notify Evalea immediately of any malfunctions that he/she recognizes. If the disturbance is not remedied within a reasonable period of time, the user must set Evalea a reasonable grace period.
Evalea is entitled to mention the name or company name of the user to third parties as a reference. This applies especially to the use of the user’s company logo and the mention of his name or company name on websites, brochures and other documents of Evalea. An obligation to publish does not arise from this for Evalea. If no naming or announcement is to be made, the user has to inform Evalea in writing or by email.
13.1 In order to use the system, it is necessary to use certain technical systems, such as terminal equipment, software programs, transmission paths, telecommunications and other services provided by third parties, which may incur additional costs for the user, in particular connection charges. Evalea does not provide such terminal equipment, software programs, transmission paths, telecommunication and other services and does not assume liability, warranty or costs incurred.
13.2 Evalea is liable to the user in case of intent or gross negligence for all damages caused by Evalea, its legal representatives or vicarious agents.
13.3 Otherwise Evalea is liable only insofar as it has culpably violated an essential contractual obligation (cardinal obligation). In these cases, liability is limited to compensation for the foreseeable, typically occurring damage.
13.4 The strict liability of Evalea for damages (§536a BGB) for defects existing at the time of conclusion of the contract is excluded. 12.3 and 12.4 remain unaffected.
14. force majeure
14.1 Evalea is exempt from the obligation to perform under this contract if and insofar as the failure to perform is due to the occurrence of circumstances of force majeure after conclusion of the contract.
14.2 Circumstances of force majeure include, for example, war, strikes, riots, expropriation, cardinal legal changes, storms, floods and other natural disasters, as well as other circumstances for which Evalea is not responsible. In particular, water ingress, power failures and interruptions or destruction of data-carrying lines are considered as such.
15. final provisions
15.1 If Evalea provides documents in several languages, the German version always takes precedence.
15.2 The user can transfer the rights and obligations of this contract to third parties only with the prior written consent of Evalea.
15.3 The place of performance for all services is Frankfurt am Main.
15.4 German law applies to the contractual relations.
15.5 Exclusive place of jurisdiction for all disputes arising from this contract is Frankfurt am Main.
15.6 Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected.
Evalea GmbH, Frankfurt am Main