General Terms & Conditions
General terms and conditions (GTC) of Evaluation Experts GmbH for SaaS- and CaaS-Services
1. General Provisions
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all legal relationships between Evaluation Experts GmbH (hereinafter “Evaluation Experts”) and its clients.
1.2 Deviating, conflicting, or supplementary general terms and conditions of the client shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing.
2. Subject Matter of Services
2.1. EvE offers cloud-based software services (“SaaS services”) as well as services for digital content as a service (“CaaS services”). The specific scope of services and costs are specified in the respective full-service contract between the parties. For the services related to the digitalization, mediation, reporting, and certification of any knowledge content, EvE has developed individualized software (“EvE Software”), consisting of various service modules.
2.2. The EvE Software and thus also the access to digital content is provided exclusively cloud based. The customer receives corresponding access data to use the contractual services.
2.3. Additional services that go beyond the contractually agreed scope of services must be remunerated separately and will be recorded in separate agreements.
2.4. As part of Content-as-a-Service (CaaS), EvE optionally offers the creation, maintenance, updating, and hosting of digital content. This includes in particular trainings, tests, operating instructions, and other digital content that are provided via a digital content management system within the EvE Software.
2.5. If contractually agreed, the content will be created according to the specific requirements of the customer and regularly updated to ensure it remains up to date; customer content will be maintained and securely hosted according to the standards defined in the contract.
2.6. EvE does not check the provided content for correctness, virus-freedom, or freedom from errors. The customer is responsible for ensuring that their content does not contain viruses and does not infringe on third-party rights. EvE reserves the right to remove content in the event of any violations.
3. Principles of Cooperation
3.1. EvE is entitled to use subcontractors for the provision of all services. Any differing data protection regulations between the parties remain unaffected.
3.2. The contact persons of the customer named in connection with the full-service contract are authorized to make legally binding decisions. The customer can replace contact persons by notification in text form.
4. Customer Obligations, Indemnification
4.1. The customer shall provide EvE with all information, data, content, and documents required for the performance of services and shall carry out all other necessary acts of cooperation. The customer shall bear all expenses associated with fulfilling these cooperation duties.
4.2. If the customer fails to meet the required cooperation obligations, or does so improperly, EvE’s obligation to provide services shall be suspended to the extent and for the duration that the provision of services depends on the prior fulfillment of such obligations by the customer. EvE is entitled to compensation for any additional effort incurred due to missing or delayed cooperation.
4.3. The customer is solely responsible for their own IT infrastructure, particularly its installation and operation, as well as for covering all associated costs and ensuring an internet connection necessary for use.
4.4. The customer is solely responsible for the data and content stored on EvE’s data carriers and for maintaining them. EvE does not verify the content for correctness, virus-freedom, or error-freedom. The customer must ensure that their content is virus-free. The customer must also ensure that all uploaded content is free of viruses and complies with applicable laws and third-party rights. EvE reserves the right to block or, if necessary, delete content if there is suspicion of legal violations.
4.5. The customer shall comply with all applicable laws and legal regulations. In particular, the customer is prohibited from storing content on EvE’s data carriers that violates legal provisions, infringes third-party intellectual property or copyrights, or any other rights of third parties. If EvE is held liable by third parties claiming their rights have been infringed by the content, the customer shall indemnify EvE against such claims and reimburse EvE for the costs of appropriate legal defense. This does not apply if the customer is not responsible for the legal violation.
4.6. The customer undertakes to protect the EvE Software, any digital content, and the associated access data against unauthorized access. In case of suspected misuse or access by third parties, the customer must immediately change the passwords and notify EvE. The customer is responsible for regularly backing up data; EvE is not responsible for providing backup services unless otherwise agreed in the full-service contract.
5. Delivery
Delivery of the EvE services shall be deemed effected upon provision of access credentials by EvE.
6. Rights in the EvE Software (SaaS Services) and Digital Content (CaaS Services)
6.1. EvE grants to the Customer a worldwide, non-exclusive, non-transferable license, limited to the duration of the agreement, to use the EvE Software to the extent and for the purposes specified in the Full-Service Agreement. The scope of use is expressly limited to the cloud-based utilization of the EvE Services. All rights in and to the EvE Software shall remain exclusively vested in EvE.
6.2. The Customer shall observe the scope of the license as stipulated in the Full-Service Agreement and shall refrain from any use of the EvE Software beyond the purposes set forth therein. In particular, the Customer shall not:
(i) use the EvE Software for any purpose other than processing content for its own benefit;
(ii) distribute, resell, assign, sublicense, or otherwise transfer any rights in the EvE Software to third parties without the prior written consent of EvE;
(iii) alter the EvE Software or develop derivative works therefrom;
(iv) decompile, translate, disassemble, reverse-engineer, or attempt to access the source code of the EvE Software, except to the extent expressly permitted by law;
(v) make copies of the EvE Software;
(vi) make the EvE Software publicly accessible or otherwise available to third parties, including by sharing login credentials; or
(vii) remove, obscure, or modify any references to EvE, authorship, branding, or trademarks.
6.3. The Customer shall protect the EvE Software, as well as any user and access authorizations provided, from unauthorized access by third parties. The Customer shall notify EvE without undue delay upon becoming aware of any actual or suspected unauthorized access by third parties and shall promptly change all affected access credentials.
6.4. In each instance in which the Customer culpably enables third-party use of the EvE Software, the Customer shall be liable to pay damages equivalent to the fee that would have been payable for one individual user under a standard two-year contract term. The Customer retains the right to prove that no damage or a substantially lesser amount of damage has occurred. Upon request, the Customer shall promptly provide all information required for the assertion of such claims. All other rights of EvE shall remain unaffected by this provision.
6.5. Should the contractual use of the EvE Software be impaired by third-party intellectual property rights, EvE shall be entitled to suspend the affected services. In such case, EvE may, at its discretion, obtain the necessary rights, provide the Customer with an equivalent alternative solution, or, if neither option is reasonably feasible, terminate the agreement for cause. EvE shall notify the Customer without undue delay and shall ensure the Customer’s continued access to its content in an appropriate manner. In such cases, the Customer shall not be obligated to make payment. Any further claims or rights of the Customer shall remain unaffected.
6.6. With respect to digital content (CaaS services), the Customer shall retain ownership of all content it provides. For content created by EvE, the foregoing provisions shall apply accordingly, with EvE granting the Customer a non-exclusive, irrevocable right of use for the term of the agreement. All other rights shall remain with EvE.
7. Availability
7.1. The EvE Software shall be made available to the Customer, on average, 98.5% of the calendar year (“Availability Time”), provided the EvE Software is used in accordance with the contractual agreement. The Availability Time expressly excludes any downtime resulting from:
7.1.1. scheduled maintenance work;
7.1.2. unforeseeable, urgent maintenance activities, e.g., to remedy security vulnerabilities;
7.1.3. force majeure or other events beyond EvE’s control that were unforeseeable and could not be prevented by EvE, including but not limited to strikes, lawful lockouts, extreme weather conditions, power outages, transportation disruptions, fire damage, epidemics and pandemics, changes in law and official orders, as well as operational disruptions or supply difficulties not caused by EvE (“Force Majeure”);
7.1.4. third parties who are not subcontractors of EvE;
7.1.5. the Customer or the Customer’s own software or hardware, or the Customer’s internet connection.
7.2. The availability shall be calculated according to the following formula:
(Maximum Availability – Downtime) ÷ Maximum Availability × 100
7.3. The Customer shall notify EvE without undue delay and in text form of any downtimes that are not the result of scheduled maintenance work.
7.4. EvE shall be entitled to carry out regular maintenance work and shall endeavor to keep any service interruptions as minimal as possible. EvE shall inform the Customer of such work no later than one week prior to commencement. In urgent cases—such as the rectification of security vulnerabilities—EvE may shorten the notice period or, where prior notice is not possible, commence maintenance without advance notice. In such cases, the Customer shall be informed without undue delay after the start of the maintenance work.
7.5. EvE shall implement technical measures to prevent unauthorized access to the EvE Software and the infiltration of harmful data. Where a risk cannot reasonably be eliminated by other means, EvE shall be entitled to delete harmful content. In such cases, EvE shall inform the Customer as early as reasonably possible.
7.6. The Customer is responsible for backing up their content. While EvE shall implement reasonable safeguards for the content, the EvE Software is not intended to serve as a backup solution. Unless otherwise agreed in the Full-Service Agreement, the Customer shall be solely responsible for ensuring adequate data backup.
7.7. EvE shall not be responsible for the hardware, software, or technical infrastructure used by the Customer or its users. Any impact such circumstances may have on the availability or functionality of the services provided by EvE shall not affect the conformity of EvE’s performance with the contract.
8. Term, Renewal, and Termination of the Agreement
8.1. The Agreement shall commence on the date specified in the Full-Service Agreement.
8.2. The Agreement shall remain in effect for the term specified in the Full-Service Agreement. Unless terminated by either party with six months’ notice prior to the end of the term, the Agreement shall automatically renew for successive one-year periods.
8.3. The right of either party to terminate the Agreement for good cause remains unaffected. Section 543 (2) No. 1 of the German Civil Code (BGB) shall not apply.
8.4. Any termination must be made in writing.
8.5. Upon termination of the Agreement, the Customer shall immediately cease use of the EvE Services. EvE shall be entitled to delete the content immediately following termination of the Agreement. The Customer is solely responsible for securing their content in a timely manner. Statutory data protection provisions remain unaffected.
9. Remuneration
9.1. The Customer is obligated to make the payments specified in the Full-Service Agreement.
9.2. The monthly remuneration for the use of the EvE Services is specified in the Full-Service Agreement and shall be due on the 15th of each month. One-time fees shall become due upon conclusion of the Agreement. Additional services shall be invoiced either upon completion of the service or on a monthly basis, at EvE’s discretion.
9.3. The prices stated in the Full-Service Agreement are net amounts and shall be subject to the applicable value-added tax.
9.4. If the Customer is in default with payment of the agreed remuneration, and a reminder has been issued with a reasonable deadline, EvE shall be entitled — in addition to the statutory consequences of default — to suspend the EvE Services until full payment has been received.
10. Price Adjustment
10.1. EvE may, by giving notice, adjust the monthly remuneration at its reasonable discretion with effect from the beginning of the calendar month following such notice, if the consumer price index for Germany (base year 2020 = 100), as determined by the Federal Statistical Office, has changed compared to the index figure that was applicable at the beginning of the Agreement or the last price adjustment. The increase may correspond, in cases of doubt, to the same percentage as the change in the index. EvE shall provide justification for any price adjustment.
10.2. The increase shall only be binding on the Customer if it is reasonable in accordance with § 315 BGB.
10.3. In the event of a price adjustment, the Customer shall have the right to terminate the Agreement extraordinarily with one month’s notice from receipt of the adjustment notification, with effect at the end of the calendar month following the notice of termination.
11. Liability
EvE’s liability for the payment of damages or reimbursement of expenses is excluded, unless otherwise provided in the following provisions.
11.1. The exclusion of liability does not apply to damages resulting from a culpable breach of an essential contractual obligation in a manner that endangers the achievement of the contractual purpose. Essential contractual obligations are those whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely. In such cases, liability shall be limited to the typical contractual damage which could have been foreseen by the parties at the time of contract formation based on the circumstances known to them. In this context, EvE’s liability for property damage and resulting financial losses is limited to €10,000.00 per damage event.
11.2. The exclusion of liability shall also not apply to damages arising from injury to life, body, or health caused by a negligent breach of duty by EvE or its legal representatives or vicarious agents.
11.3. The exclusion of liability shall not apply to damages caused by intentional or grossly negligent breaches of duty by EvE or its legal representatives or vicarious agents.
11.4. To the extent that EvE’s liability is excluded or limited, this shall also apply to the liability of its legal representatives, employees, and vicarious agents.
11.5. If EvE has provided a guarantee regarding the condition of the EvE Software, the content of that guarantee shall not be affected by the above limitations of liability.
11.6. Any liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
12. Force Majeure
Neither party shall be liable for damages arising from force majeure. In cases of force majeure, the affected party shall be released from its performance obligations for the duration during which it is prevented from performing due to the force majeure. The affected party shall notify the other party of both the commencement and cessation of the force majeure and shall use its best efforts to minimize the impact thereof.
13. Limitation Period
All claims under the Agreement against EvE and/or its legal representatives, employees, and vicarious agents — in particular claims for defects, damages, or reimbursement of expenses — shall be subject to a limitation period of one year, irrespective of whether they are contractual or statutory in nature. The commencement of the limitation period shall be determined in accordance with statutory provisions.
The limitation period shall not apply in cases of (i) intent, (ii) gross negligence, (iii) breach of a material obligation, (iv) personal injury, (v) liability under the Product Liability Act, (vi) fraudulent concealment of a defect, or (vii) defects falling within the scope of § 438 (1) No. 1(a) BGB. The Customer’s right to rectification remains unaffected for the duration of this Agreement.
14. Confidentiality
14.1. Each party shall maintain confidentiality with respect to all confidential information disclosed to it by the other party and shall not disclose such information to third parties or make it accessible to third parties. Confidential information includes all information that one party (“disclosing party”) discloses to the other party (“receiving party”) during pre-contractual or contractual cooperation, or that the receiving party otherwise becomes aware of, and which is either marked as confidential or, in the case of oral disclosure, confirmed in writing as confidential within two weeks.
14.2. The parties may disclose confidential information to employees and subcontractors, provided that they are bound by confidentiality obligations substantially equivalent to those set forth in this Agreement.
14.3. Confidential information shall not include information for which the receiving party can prove that:
14.3.1. it is publicly known.
14.3.2. the disclosing party has waived its protection in writing.
14.3.3. it was lawfully obtained by means other than through cooperation with the disclosing party, and without being subject to a confidentiality obligation.
14.3.4. it was developed independently of the disclosing party’s confidential information.
14.3.5. it was acquired through observation, examination, reverse engineering, or testing of a product or object made publicly available.
14.4. In the event of disclosure pursuant to an official or judicial order, or a legal obligation, the other party shall be informed prior to the disclosure, to the extent and as soon as permissible. The parties shall assist each other in preventing such disclosure to the extent legally possible.
14.5. EvE shall be entitled to name the Customer as a reference client.
14.6. More extensive obligations under data protection law remain unaffected.
14.7. This confidentiality obligation shall apply for the term of this Agreement and for a further period of three years thereafter. Statutory or contractual obligations to delete or return data earlier, or to maintain data confidentiality permanently, remain unaffected.
15. Data Protection
15.1. The parties agree to always comply with the applicable data protection regulations.
15.2. The parties acknowledge that, where EvE processes personal data on behalf of the Customer, such processing constitutes commissioned data processing under Article 28 of the General Data Protection Regulation (GDPR). The parties shall conclude a data processing agreement to this effect.
16. Final Provisions
16.1. The Customer is not entitled to assign the contract or any rights arising therefrom to third parties without the prior written consent of EvE. The Customer is prohibited from assigning or pledging claims arising from the contract to third parties unless the Customer has a legitimate interest in doing so.
16.2. The Customer may only offset claims of EvE with counterclaims that are undisputed or have been established by final and binding judgment. The same applies to the assertion of a right of retention by the Customer.
16.3. Amendments must be made in writing. This also applies to the amendment of this written form requirement itself. The requirement of written form also applies to amendments to and deviations from these contractual terms.
16.4. Deviating, conflicting, or supplementary general terms and conditions shall not become part of the contract unless their applicability has been expressly agreed to in writing.
16.5. Should any provision of this agreement be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes closest to the economic intent of the invalid provision. This also applies in the event of a contractual gap.
16.6. German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.7. If the Customer is a merchant within the meaning of the German Commercial Code (HGB) or a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Berlin.
These GTC are effective as of 1.5.2020.
