Evulu Terms & conditions

Effective date: 14 July 2020

Provider of innovation software: Evulu GbR, Neustädter Neuer Weg 20, 20459 Hamburg.

§ 1 Scope and subject of the contract

(1) These contractual conditions apply to the use of the software developed and provided by Evulu GbR (hereinafter referred to as “Evulu”) according to the current product description.

(2) The software is operated by Evulu as a web-based SaaS or cloud solution. The Customer is enabled to use the software stored and running on the servers of the Provider or a service Provider commissioned by the Provider via an Internet connection for his own purposes during the term of this contract and to store and process his data with their help.

(3) Additional services, such as the development of Customer-specific solutions or necessary adjustments require a separate contract.

(4) Only these contractual conditions apply. Contract conditions presented by the Customer shall not apply. Counter-confirmations of the Customer with reference to his own terms and conditions are expressly contradicted.

§ 2 Registration, conclusion of the contract of use

(1) By registering on the website www.evulu.de with his name, e-mail and company, the Customer makes an offer to conclude this user contract.

(2) The Provider checks the corresponding registration. The user will then receive a confirmation e-mail with his access data. With receipt of the confirmation e-mail, the contract is considered concluded.

§ 3 Type and scope of the service

(1) The Provider shall make the software available to the Customer for use in its most current version at the router exit of the computer center where the server with the Software is located (“Delivery Point”). The software, the necessary storage as well as the data processing space shall be provided by Evulu. However, Evulu does not owe the establishment and maintenance of the data connection between the Customer’s IT systems and the described transfer point.

(2) Insofar as the software runs exclusively on the servers of the Provider or of a service Provider commissioned by the Provider, the Customer does not require any copyrighted rights to use the software, and the Provider does not grant any such rights. For the duration of the contract, however, the Provider grants the Customer the non-exclusive, non-transferable and time-limited right to load the user interface of the software for display on the screen into the main memory of the end devices used for the purpose in accordance with the contract and to make the resulting copies of the user interface.

§ 4 Terms of use

(1) The Customer undertakes to use the software provided by Evulu exclusively in accordance with the contract and neither to pass it on to third parties nor to make it available to third parties in any other way. The Customer shall not be entitled to reverse engineer, decompile, disassemble or reproduce the software or use any part of the software to create a separate application.

(2) The Customer acknowledges Evulu as the sole licensor of the software and owner of the associated copyrights. Evulu’s rights as the sole licenser also relate to extensions of the software provided by Evulu to the Customer, unless otherwise agreed in writing.

(3) The Customer hereby recognizes Evulus’ trademark, name and patent rights in relation to the software and the associated documentation. The Customer may not remove, change or otherwise modify copyright information or other similar proprietary notices in the programs and the associated documentation.

(4) The data collected, processed and generated by the software is stored on the servers of the computer center. The Customer shall in any case remain the sole owner of the data and may therefore demand the surrender of individual or all data from Evulu at any time, in particular after termination of the contract, without Evulu having a right of retention. The surrender of data is effected by electronic transmission via a data network or, by separate agreement, by handing over data carriers. The Customer has no right to receive the software suitable for the use of the data. The responsibility for the permissibility of the collection, processing and use of the data and for safeguarding the rights of those affected (information, use, correction, blocking, deletion) lies with the Customer.

(5) In the event of violations of the aforementioned terms of use, Evulu is entitled to terminate the contract in whole or in part without notice. In this case, Evulu additionally reserves the right to assert claims for damages against the Customer resulting from the breach of contract.

(6) The amounts due shall be collected from the most recently deposited direct debit or credit card data.

(7) Evulu is entitled to terminate the contract for good cause, in particular in the event of failed direct debits or credit card collections.

§ 5 Availability of the software

(1) The Provider draws the Customer’s attention to the fact that restrictions or impairments of the services provided may arise that are beyond Evulu’s control. This includes in particular actions of third parties not acting on behalf of the Provider, technical conditions/disruptions of the Internet that cannot be influenced by the Provider and force majeure. The hardware, software and technical infrastructure used by the Customer can also have an influence on the services of the Provider. Insofar as such circumstances have an influence on the availability or functionality of the service provided by Evulu, this has no effect on the contractual conformity of the services provided.

(2) The Customer is obliged to notify the Provider immediately and as precisely as possible of any functional failures, malfunctions or impairments of the software. If the Customer fails to do so, §536c BGB applies accordingly.

§ 6 Maintenance Conditions and Service Level

(1) As the author and Provider of the software, Evulu reserves the right to make further developments and changes in performance (e.g. by using newer or different technologies, systems, processes or standards) in the course of technical progress and performance optimization after conclusion of the contract. In the event of significant changes in performance, Evulu will inform the Customer accordingly in good time. If significant disadvantages arise for the Customer as a result of the service changes, the Customer shall be entitled to extraordinary termination of the contract on the date of the change. The termination must be effected by the Customer within two weeks of receipt of the notification of the change in services.

(2) Evulu shall ensure that the software provided can be operated in an environment and with a form suitable for the Customer’s requirements and on hardware suitable for the Customer’s intended use. This includes the number and type of servers, regular backups, scalability, the use of firewalls, and regular virus checks.

(3) Evulu performs daily backups of the data stocks. By means of a recovery procedure, Evulu can perform the recovery of Customer data at the express request of the Customer.

(4) The availability of the data center network at the router exit on the internet is 99% on an annual average. The client-side connection to the Internet is the responsibility of the Customer. This is not part of the SaaS scope of services. The downtime is calculated in full minutes and is calculated as the sum of the fault clearance times per year. Excluded from this are those periods of time that Evulu marks as so-called maintenance windows for optimization and performance enhancement, as well as time lost during fault clearance due to reasons for which Evulu is not responsible and failures due to force majeure.

(5) Disruptions to system availability must be reported by the Customer immediately after they become known. Prior to reporting the fault, the Customer must check his area of responsibility. In the case of fault reports received within the support hours, fault clearance shall begin within two hours. For fault reports received outside support hours, fault clearance begins on the following working day. Delays in fault clearance for which the Customer is responsible (e.g. due to the unavailability of a contact person on the Customer side) are not counted towards the fault clearance time.

§ 7 Rights to data processing, data protection

(1) The Provider adheres to the statutory data protection provisions.

(2) For the purposes of implementing the contract, the Customer grants the Provider the right to copy the data to be stored by the Provider for the Customer, insofar as this is necessary for the provision of the services owed under this contract. The Provider is also entitled to keep the data in a failure system or separate failure computer center. In order to eliminate failures, the Provider is also entitled to make changes to the structure of the data or the data format.

(3) Evulu regularly saves the Customer’s data on the server for which the Provider is responsible on an external backup server. The Customer can extract these data, as far as technically possible, at any time for backup purposes and is obliged to do so at regular, customary intervals. As far as this is not possible, Evulu can provide this data at the Customer’s request.

(4) If and to the extent that the Customer processes personal data of third parties on IT systems for which the Provider is technically responsible, an order data processing agreement must be concluded. In the event of an infringement, the Customer shall indemnify the Provider against any claims by third parties.

§ 8 Duties of the Customer

(1) The Customer must protect the access authorizations assigned to him or the users as well as identification and authentication information from access by third parties and not pass them on to unauthorized persons.

(2) The Customer is obligated to indemnify the Provider from all claims of third parties due to violations of rights, which are based on an illegal use of the object of service by the Customer, former employees of the Customer or which occur with the Customer’s approval. If the Customer recognizes or must recognize that such a violation is imminent, the obligation to inform the Provider without delay exists.

(3) The Customer has to use possibilities provided by the Provider to additionally secure his data in his original area of responsibility.

§ 9 Use contrary to contract, compensation

(1) For each case in which an unjustified use is made of a contractual service within the Customer’s area of responsibility, the Customer shall pay damages in the amount of the remuneration that would have been incurred for the contractual use within the framework of the minimum contractual period applicable to this service.

(2) The Customer reserves the right to prove that the Customer is not responsible for the unauthorized use or that no damage or a significantly lower damage exists. The Provider remains entitled to claim further damages.

§ 10 Right of revocation

(1) The Customer can revoke the contract declaration within 5 days without giving reasons in text form (e.g. letter, fax, e-mail). The period begins after transfer of the fee due for the selected subscription model. The timely dispatch of a legally valid declaration of revocation is sufficient to comply with the revocation period. The revocation is to be addressed to: Evulu GbR – Neustädter Neuer Weg 20 – 20459 Hamburg.

(2) In the event of an effective revocation, the services received by both parties must be returned. Thus Evulu has a claim to the reimbursement of warranty and use-related costs. The Customer, on the other hand, can demand the return of the fee transferred by him.

(3) Obligations to refund payments must be fulfilled within 30 days. For the Customer, the period begins with the dispatch of the declaration of cancellation and for Evulu with its receipt.

(4) The Customer’s right of withdrawal expires prematurely if the contract is completely fulfilled by both parties at the Customer’s express request before the right of withdrawal has been exercised.

(5) The above right of cancellation shall not apply if the legal transaction can be attributed to the Customer’s commercial or professional activity.

§ 11 Support

(1) A support case exists if the software does not fulfil the contractual functions according to the product description.

(2) If the Customer reports a support case, he must provide a description of the respective malfunction that is as detailed as possible in order to enable the most efficient troubleshooting possible.

(3) The report shall be made by e-mail and only during normal office hours (Monday to Friday from 9.00 to 17.00 hours – CET).

§ 12 Remuneration

(1) SaaS services are charged at a monthly or annual fee agreed in the contract – depending on the subscription model chosen. The fees are invoiced in advance and are valid for a period of 12 months after the contract is signed.

(2) All prices are exclusive of VAT and can be found in the current information on the Evulu website. Changes will be communicated in due time.

(3) The Customer has the option of paying by bank transfer or credit card.

(4) If the fees are not transferred in due time, Evulu reserves the right to unilaterally terminate this contract and terminate the cooperation.

§ 13 Terms of payment

(1) Payments shall be made by direct debit or credit card clearing. If the payment deadline is exceeded, benefits may be restricted in the event of default.

(2) The Customer shall not be entitled to offset claims against Evulu, unless these are legally established claims or claims recognized by Evulu in writing.

§ 14 Obligations of the Customer to cooperate

(1) The Customer will support the Provider in providing the contractual services to an appropriate extent.

(2) The Customer is responsible for the proper and regular backup of his data. This also applies to the documents provided to the Provider in the course of the contract execution.

(3) For the use of the software, the system requirements resulting from the product description must be fulfilled at the Customer’s site. The Customer himself is responsible for this.

(4) Insofar as the Customer provides Evulu with protected content (e.g. graphics, trademarks and other copyrighted or trademarked content), the Customer grants the Provider all rights necessary for the execution of the contractual agreement. This includes in particular the right to make the corresponding contents available to the public. In this context, the Customer assures that he/she holds all necessary rights to the materials provided to grant the Provider the corresponding rights.

(5) The Customer shall keep the access data made available to him confidential and ensure that any employees to whom access data are made available also do so. The service of the Provider may not be made available to third parties, unless this has been expressly agreed by the parties.

(6) Evulu does not guarantee the fulfilment of the Customer’s individual requirements by the software specified in the contract. This applies in particular to the failure to achieve the desired economic success. Warranty claims against Evulu are only available to the direct Customer and cannot be assigned.

§ 15 Warranty

(1) According to the state of the art, it is not possible to exclude errors in software under all application conditions. However, Evulu guarantees that the software mentioned at www.evulu.de can be used in principle. The period of limitation is one year.

(2) Errors in the software and the associated documentation shall be rectified by Evulu free of charge within a reasonable period of time. A prerequisite for this claim for rectification of errors is that the error is reproducible. In order to fulfil its warranty obligations, Evulu may, at its own discretion, either rectify the defect or supply a replacement. In particular, Evulu may provide the Customer with a new version of the software to fulfil the warranty obligation. It shall be deemed equivalent to the removal of an error if Evulu provides an alternative solution to the faulty function, which allows the Customer to use the software in accordance with the contract.

(3) In the event of an insignificant reduction in the suitability of the services for contractual use, the Customer shall have no claims for defects.

(4) Warranty claims are excluded if the software is not used in accordance with the contract. Furthermore, warranty claims are excluded if the Customer makes changes or enhancements to the software mentioned in the contract, unless the Customer proves that the errors are not causally related to the changes or enhancements.

(5) If a significant program error is not rectified by Evulu in accordance with the stated conditions, the Customer may demand a reduction of the monthly SaaS fee. Evulu shall have the same right if it is not possible to produce the error correction with reasonable effort. If it becomes apparent in the course of the error correction that the problems are due to operating errors or improper use by the Customer, Evulu can demand appropriate remuneration for the expenditure incurred.

(6) Evulu does not guarantee the fulfilment of the Customer’s individual requirements by the software specified in the contract. This applies in particular to the failure to achieve the desired economic success. Warranty claims against Evulu are only available to the direct Customer and cannot be assigned.

§ 16 Liability and compensation

(1) A liability of Evulu GbR is excluded. Excluded from this is liability for damages due to the violation of such contractual obligations that are indispensable for achieving the purpose of the contract, due to defective products in accordance with the Product Liability Act, due to injury to life, body or health caused by a negligent breach of duty by Evulu or an intentional or negligent breach of duty by a legal representative or vicarious agent, and for other damages caused by a grossly negligent breach of duty by Evulu or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of ours.

(2) In the event of a breach of cardinal obligations due to slight negligence by us, our legal representatives or vicarious agents, liability shall be limited to the amount of damage foreseeable at the time of conclusion of the contract, the occurrence of which must be typically expected.

(3) Cardinal obligations are those contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely, and whose violation on the other hand endangers the achievement of the purpose of the contract.

(4) In the event of a breach of a cardinal obligation, the liability – insofar as the damage is based only on slight or normal negligence and does not affect life, limb or health – is limited to such damage that must be typically and foreseeably expected to occur in the context of the delivery of such software as is acquired by the Customer.

(5) Evulu shall not be liable for disruptions to telecommunications connections, for disruptions to lines within the Internet, in the event of force majeure, fault of third parties or of the Customer himself. Evulu also accepts no liability for damage that occurs when the Customer passes on passwords or user IDs to unauthorized persons.

(6) If damage to the Customer results from the loss of data, Evulu shall not be liable for this, insofar as the damage would have been avoided by regular and complete back-up of all relevant data by the Customer. The Customer shall carry out or have carried out a regular and complete data backup itself or have it carried out by a third party and is solely responsible for this.

(7) Otherwise, liability – regardless of the legal grounds – is excluded both for Evulu and for vicarious agents and assistants.

§ 17 Customer data and indemnification from claims of third parties

(1) As a technical service Provider, the Provider stores content and data for the Customer, which the Customer enters and stores and makes available for retrieval when using the software. The Customer is obliged not to enter any contents and data that are punishable by law or otherwise. Also, the Customer must not use any programs containing viruses or other malicious software in connection with Evulu’s software. In particular, the Customer undertakes not to use the software to offer illegal services or goods. The Customer is the responsible party with regard to personal data of himself and his users and must therefore always check whether the processing of such data concerning the use of the software is subject to the relevant statutory provisions.

(2) The Customer is solely responsible for all content and processed data used by him or his users as well as for any legal positions that may be required for this. The Provider does not take any notice of contents of the Customer or his users and generally does not check the contents used with the software.

(3) In this context, the Customer undertakes to indemnify the Provider from any liability and any costs, including possible and actual costs of legal proceedings, if claims are made against the Provider by third parties, including employees of the Customer personally, as a result of alleged actions or omissions of the Customer. The Provider shall inform the Customer about the claim and, to the extent legally possible, give the Customer the opportunity to defend the asserted claim. At the same time, the Customer shall immediately provide Evulu with all information available to him on the facts of the case which are the subject of the claim in full.

(4) Any further claims for damages of the Provider remain unaffected.

§ 18 Contract period and termination of the contract

(1) The minimum term for the provision of the SaaS service is 1 month. The contract period is automatically extended by a further month for a monthly subscription and by a further year for a yearly subscription if no notice of termination is given.

(2) After termination of the contract, the Provider shall return to the Customer all documents provided by the Customer and still in the possession of the Provider as well as data carriers related to the present contract and delete the data stored with the Provider, provided that no storage obligations or rights exist.

§ 19 Confidentiality

(1) The contracting parties undertake to keep secret any knowledge gained within the scope of the subject matter of the contract – in particular technical or economic data and other knowledge – and to use it exclusively for the purposes of the subject matter of the contract.

(2) This does not apply to information which is publicly accessible or becomes publicly accessible without unauthorized action or omission by the contracting parties or which must be made accessible due to a judicial order or a law. In the case of support for Customer problems, it may become necessary to access Customer data records. The access can be done via a web meeting with the Customer or via database analysis. This access is limited to the period of the respective support measure.

(3) If personal data must be processed within the scope of the subject matter of the contract, the Provider and the Customer will comply with the statutory data protection provisions.

(4) Evulu advises the Customer in accordance with the Federal Data Protection Act (in German: BDSG) that Customer data will be stored.

§ 20 Transfer of rights and obligations

The assignment of the rights and obligations under this contract is only permitted with the prior written consent of the Provider. The Provider is entitled to entrust third parties with the fulfilment of the obligations arising from this contract.

§ 21 Final provision

The place of jurisdiction for both contracting parties is Hamburg/Germany. The law of the Federal Republic of Germany applies exclusively. The contract, its supplements and amendments as well as changes in form must be made in writing.

Should any provision of the contract be or become invalid, this shall not affect the validity of the rest of the contract. The contracting parties undertake to replace the invalid provision by a provision which comes as close as possible to the economic intention. The same applies if a contractual gap should become apparent.