§ 1 General Subject Matter of the Contract and Scope of Application

These General Terms and Conditions (GTC) govern the provision and use of the Evalea Software by Evalea GmbH, Sandweg 6 (Hinterhaus), 60316 Frankfurt am Main (hereinafter referred to as the "Provider"). They apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (hereinafter referred to as "Customer").
The following agreements govern the provision of the Evalea software by the provider. The software provides the customer with the technical possibility and authorization to access a software application and use its functionalities. This includes access via web browser as well as use within the Evalea Microsoft Teams application.
These GTC apply to all business relationships between the Provider and the Customer, in particular also for free test phases, unless a separate individual contract has been concluded. In the event of the conclusion of an individual contract (e.g. Software-as-a-Service contract or order form), this shall expressly take precedence over these GTC in the event of contradictions.
Conflicting, deviating or supplementary general terms and conditions of the customer do not become part of the contract, unless the provider expressly agrees to their validity in writing. This consent requirement applies in any case, for example even if the provider performs the service to the customer without reservation in knowledge of the customer's general terms and conditions.

§ 2 Services, prices

1. The provider shall provide the customer with the software in operational condition. The content and functionalities are known to the customer from a previous presentation, test or use. The specific scope of the booked modules, the number of active users, administration access and the storage volume result from the respective offer or individual contract.
2. Test phase: If a free test phase has been agreed between the parties, the standard duration is 14 days, unless otherwise agreed. The provider reserves the right to end the test phase at any time without giving reasons or to extend it in individual cases. During the test phase there is no entitlement to permanent provision or specific service level agreements. After the test phase has ended, the access authorization ends automatically unless a paid individual contract is concluded.
3. Individual adaptation services (e.g. configurations, additional developments), consulting, setup and implementation services can also be commissioned. Billing is based on time spent or as a lump sum according to the offer. Follow-up appointments provided for in the setup must be made within three months of the start of the contract; thereafter, they expire automatically, unless an extension is made by mutual agreement. Appointments beyond this are subject to a fee in accordance with the applicable price list.
4. The Provider is entitled to adjust the usage fee once a year to take into account increased costs due to the general price increase. The adjustment is based on the consumer price index (CPI) for Germany, published by the Federal Statistical Office. The amount of the adjustment is calculated as follows: The user fees change by the same percentage as the CPI increased compared to the previous year. The basis for calculation is the average of the CPI of the last twelve available months ending at least two months before the adjustment month.
5. The provider shall inform the customer in writing of the adjustment at least 30 days before it comes into force. As the CPI falls, the fees remain unchanged. The annual increase is limited to a maximum of 5%.

§ 3 Right of Use

1. The Client and the companies affiliated with the Client within the meaning of Sections 18 et seq. of the German Stock Corporation Act (AktG) shall have the non-exclusive right to access the Software via the Internet and to use the functionalities associated with the System in accordance with this Agreement, which is limited in time for the duration of this Agreement. The customer does not receive any further rights, in particular to the system and its technology.
2. The Customer shall not be entitled to use the Software beyond the permitted use of this Agreement or to have it used by third parties or to make it available to third parties. External trainers or authors are excluded from this, provided that their number is within the scope of the booked user access. This also excludes the completion of the feedback form via the feedback link, which is also permitted to third parties. In particular, the Client or the companies affiliated with the Client within the meaning of Sections 18 et seq. of the German Stock Corporation Act (AktG) are not permitted to reproduce, sell or transfer the System or parts thereof to third parties for a limited period of time, and in particular not to rent or lend them. Companies affiliated with the Client within the meaning of Sections 18 et seq. of the German Stock Corporation Act are not third parties within the meaning of this Agreement.
3. In the event that third-party property rights are infringed by the Customer's use of the software in violation of the contract, the Provider shall be entitled to refuse the services affected by this after setting a reasonable period of time (at least 14 days), provided that the Customer does not remedy the use in violation of the contract within the period. The Provider will inform the Customer of this without delay and provide access to his data in an appropriate manner. Other claims or rights of the customer remain unaffected.
4. The Provider may use the Customer's name, logo and brand on www.evalea.de, the Provider's social media and in digital materials and print products. The consent can be revoked at any time, in part or in its entirety. Upon revocation, Evalea will remove the logo, brand and/or name of the customer from the website and other media owned by the provider within four weeks or will endeavour to obtain a corresponding removal from external services. This does not affect campaigns and campaigns that are already underway. If the customer name has been used in print products or similar, the provider has the right to continue using the flyers/brochures that have already been printed.

§ 4 Data protection and data security

1. If personal data is processed by the Provider within the framework of this contract, this will be carried out in accordance with a contract processing agreement. This is concluded between the customer and the provider in addition to this contract.
2. In the context of processing, the provider complies with the relevant legal requirements, in particular those from the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR). The Provider is only entitled to use the data collected on the basis of this Agreement for the purpose of providing the services incumbent on the Provider under this Agreement.
3. The provider must take sufficient technical and organizational measures to protect the data. The Provider uses only those employees who have been obliged to maintain data secrecy to process the data.
4. If the provider uses subcontractors in the context of the processing of the data and these subcontractors act as processors within the meaning of Article 28 GDPR, the provider concludes an agreement with the subcontractors on order processing in accordance with the legal requirements. If a third party processes the data as a responsible body, the provider concludes data protection regulations with the third party that correspond to the present regulations. A transfer of the data to third parties is only permissible in compliance with the relevant legal requirements.
5. The contracting parties – each in their own area of responsibility – fully guarantee the individual protection of personal data.

§ 5 Duties and Obligations of the Client

The customer will fulfill the obligations incumbent on the provision and processing of this contract. In particular, the customer will

1. pay the agreed prices in accordance with their obligations.
2. protect the user and access authorisations assigned to the company or the users as well as identification and authentication safeguards against access by third parties and do not pass them on to unauthorised users;
3. ensure that (e.g. when copying texts and data of third parties on servers of the provider) all industrial property rights and copyrights are observed;
4. obtain the necessary consent of the respective data subject, insofar as he/she collects, processes or uses personal data in the context of the use of the software and no statutory permission applies;
5. not to misuse the software or to allow it to be used, in particular not to transmit information offers with illegal or immoral content or to refer to such information that serves to incite hatred, instructs to commit crimes or glorifies or trivialises violence, is sexually offensive or pornographic, is likely to seriously endanger children or adolescents morally or impair their well-being or may damage the reputation of the provider;
6. refrain from attempting to access information or data without authorisation, either by itself or through unauthorised third parties, or to intervene or cause to be interfered with in programmes operated by the Provider, or to penetrate the Provider's data networks without authorisation;
7. not misuse the possible exchange of electronic messages for the unsolicited sending of messages or information to third parties for advertising purposes (spamming);
8. to the provider for damages that are based on an unlawful use of the software by the company or occur with its approval or that are caused in particular by the company. arising from data protection, copyright or other legal disputes associated with the use of the software. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to inform the provider immediately.
9. take over the first and second level support for their own employees. First- and second-level support for one's own employees includes enabling these employees to work with the software. In particular, this means informing about processes, rights, roles and the operation of the system. The first and second level support for the administrators always lies with the provider.

§ 6 Use of the Software in Violation of Contract

1. The Provider shall be entitled to indemnify the Provider in the event of an unlawful breach by the Client or the Users designated by the Client of any of the essential obligations set out in this Agreement, in particular the Provider of the Contract. in the event of a violation of the obligations specified in § 5.6 – 5.8, to block access to the software and its data. The Provider is obliged to inform the Customer of the alleged violation in advance with sufficient justification and to grant the Customer a reasonable period of time (at least 14 days) to remedy the violation. Only after the unsuccessful expiry of this period may an access block be made. In cases of serious violations that have criminal relevance, the provider is entitled to block access immediately and without prior notice and to inform the competent authorities. Access will only be restored when the violation of the material obligation concerned has been permanently eliminated.
2. The provider is entitled to delete the affected data in the event of a violation of § 5.6 – 5.8.
3. In the event of an unlawful breach by a User of the obligations set out in § 5.6 – 5.8, the Customer shall immediately provide the Provider upon request with all information on the assertion of claims against the User, in particular the User's name and address, as far as possible and legally permissible.

§ 7 Terms of payment

1. The Provider will invoice the Customer by post or e-mail to the address provided by the Customer. Prices are exclusive of VAT.
2. The usage fee is to be paid in full in advance at the beginning of the contract for the booked term after receipt of the invoice.
3. Costs for setup and setup are incurred after the configuration workshop, and costs for project management are due at the beginning of the project. Costs for individual adjustments are due after the service has been performed.
4. All invoices from the provider are due for payment within 14 days in net form.
5. The customer is obliged to keep the personal data required for the selected payment method up to date at all times in order to ensure smooth payment processing.

§ 8 Default

1. In the event of a non-negligible delay in payment by the Customer and over a period of more than 2 weeks, the Provider shall be entitled to restrict access to the system after two corresponding reminders until the outstanding invoice amount has been settled. In this case, the customer remains obliged to pay the invoice.
2. If the customer is in default with the payment of the fee in a period of more than two months, the provider is entitled to terminate the contract after two reminders have been issued and a reasonable period of time has elapsed.
3. The Provider reserves the right to assert further claims due to late payment.
4. If the Provider defaults on the operational provision, liability shall be governed by Clause 11. The customer is only entitled to terminate the contract pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) if the customer sets the provider a reasonable grace period and the provider does not comply with it.

§ 9 Commencement and Term of Contract, Termination / Deletion

1. The start of the contract is the time specified in the offer or individual contract.
2. The term of the contract results from the respective offer or individual contract. Unless otherwise agreed, the initial term is 12 months.
   The term of the contract shall be automatically extended by a further term after the expiry of the respective contract period, unless the customer or the provider terminates the contract in text form (in writing or by e-mail) in compliance with the agreed notice period. Unless otherwise agreed, the notice period is 14 days to the end of the respective contract period.
3. After the end of the contract as a result of termination, Evalea closes the customer's account. The Customer may terminate his customer account at any time, even before the expiry of time, by requesting the Provider to delete it in writing or by e-mail; however, the deletion does not release the customer from any contractual obligations.
4. After the customer account has been terminated, the provider deletes all associated customer data within a few days, but with the exception of the contract-relevant data and not before the contract is processed or the contract ends of the booked package. After termination, the customer can no longer access the customer account and may no longer be able to use other analyses. If desired, the customer can arrange for an export of all their own data as a CSV file with the cancellation. The provider will inform the customer of this.
5. The right to terminate for good cause remains unaffected.

§ 10 Availability and disruptions

1. The Provider reserves the right to adjust the range of services. There is no entitlement to the retention of certain (partial) services beyond the agreed period of use. If such a change in the range of services is planned, the customer will be informed of this with a reasonable period of time. Changes to a fee-based service or to the price due for it are only permissible during the agreed period of use if they do not restrict the services provided to the customer.
2. The Provider has the right to temporarily interrupt or restrict access to the Software in order to carry out maintenance work.
3. The Provider shall immediately remedy faults within the scope of technical and operational possibilities. The customer is obliged to notify the provider immediately of any recognizable malfunctions. If the fault is not resolved within a reasonable period of time, the customer must set the provider a reasonable grace period.

§ 11 Liability

1. In order to use the software, it is necessary to use certain technical systems, such as terminal equipment, software programs, transmission channels, telecommunications and other services of third parties, which may incur further costs for the customer, in particular connection fees. The Provider does not provide such terminal equipment, software programs, transmission methods, telecommunications and other services and does not assume any liability, warranty or costs incurred for them.
2. The provider assumes no liability for the completeness, timeliness or correctness of the information transmitted. However, if this is due to a software defect caused by the provider, the provider's liability cannot be excluded.
3. In the event of intent or gross negligence, the Provider shall be liable to the Customer for all damages caused by the Customer as well as by its legal representatives or vicarious agents.
4. In all other respects, the provider is only liable if he has violated a material contractual obligation (cardinal obligation). In these cases, liability is limited to compensation for the foreseeable, typically occurring damage.
5. The regulations pursuant to § 11 No. 3 and No. 4 shall apply mutatis mutandis to the liability of the Customer vis-à-vis the Provider.

§ 12 Confidentiality

1. The parties undertake to maintain confidentiality about the content of this contract and all confidential information exchanged in the performance of this contract and not to disclose it to third parties.
2. Confidential Information means any non-public information that is disclosed or made available, directly or indirectly, in connection with the Agreement by a party or an affiliate of the other party (Disclosing Party) to the other party or to an affiliate of that party (Receiving Party) if it is marked as confidential or if it is reasonably considered confidential by reason of its content or circumstances.
3. The parties will oblige and supervise their employees, contractors and other participating companies (subcontractors and affiliates) accordingly.
4. The duty of confidentiality does not apply to such documents, knowledge and information for which a party proves that it has become generally known for a reason for which the party is not responsible.
5. The obligation of confidentiality shall continue after the end of this Agreement for a period of 3 years. In the event of any breach of the duty of confidentiality, the other party shall be entitled to terminate the contract without notice, without prejudice to any other rights.

§ 13 Force majeure

1. The Provider and the Customer are released from the obligation to perform under this contract if and to the extent that the non-performance of services is due to the occurrence of force majeure circumstances after the conclusion of the contract.
2. Circumstances of force majeure include, for example, war, strikes, riots, expropriations, cardinal changes in the law, storms, floods and other natural disasters as well as other circumstances for which the provider is not responsible.
3. Each Contracting Party shall inform the other Contracting Party immediately and in writing of the occurrence of a case of force majeure.

§ 14 Final provisions

1. The Customer and the Provider may only transfer the rights and obligations under this Agreement to third parties with the prior written consent of the other party.
2. German law applies to the contractual relationships. The place of jurisdiction is Frankfurt am Main.