General Terms and Conditions
evoach web application for digital coaching
§ 1 Material scope and subject matter of the contract
The following terms and conditions (the "General Terms and Conditions of Contract") apply to the use and operational support of standardized digital chatbot coaching ("coaching software") produced by evoach GmbH, hereinafter referred to as evoach, and provided as a software-as-a-service service via the Internet, company intranet or internal learning platforms.
The subject of the contract is the provision of coaching software for use by authorized employees of the company, accessible via the Internet, intranet or internal learning platforms.
Coaching software developed individually for the customer is not the subject of this contract.
§ 2 Type and scope of services
The nature and scope of the services provided by both parties are governed by the contractual agreements.
Further conditions, in particular general terms and conditions of the contractual partner, shall not apply, even if evoach does not expressly object to them. The general terms and conditions of evoach GmbH shall apply exclusively.
3.1 Rights of the customer to the software
evoach grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the software specified in the contract and the associated user documentation within the framework for the duration of the contract. The software shall be made available via the Internet or, by agreement, via a customer-internal network.
The customer undertakes to use the software exclusively in accordance with the contract and neither to pass it on to third parties nor to make it accessible to third parties in any other way. The customer is not entitled to "reverse engineer", decompile, disassemble, duplicate or use any part of the software to create a separate application.
Customer hereby acknowledges evoach as the sole licensor of the Software and the copyrights associated therewith. evoach's rights as sole licensor shall also apply to any enhancements to the Software provided by evoach to Customer unless otherwise provided in writing.
Customer hereby acknowledges evoach's trademark, name and patent rights with respect to the Software and related documentation. Customer shall not remove, alter or otherwise modify any copyright information or other similar proprietary notices in the Software and related documentation.
3.2 Customer's Rights to the Data
3.4 Contract duration and termination
The minimum term for the provision of the SaaS service is 12 months. A reduction to six months in the context of pilot projects is possible by agreement. The contract period shall be automatically extended by a further month if no notice of termination is given. Amounts are collected from the most recently stored direct debit or credit card data, unless the customer and evoach agree to purchase on account. In this case the invoice is due at the start of the contract period.
evoach is entitled to terminate the contract for good cause, in particular in the event of failed direct debits or credit card collections or payment arrears of more than four weeks.
§ 4 Maintenance Conditions and Service Level
4.1 Further developments/changes in performance
In the course of technical progress and performance optimization after conclusion of the contract, evoach reserves the right to make further developments, performance changes (e.g. by using newer or different technologies, systems, procedures or standards) and enhancements (e.g. by adding new topic modules and coaching methods). In the event of significant changes to services, evoach will notify the customer accordingly in good time. If the customer suffers significant disadvantages as a result of the service changes, the customer has the right to extraordinary termination of the contract on the date of the change. The customer must give notice of termination within two weeks of receiving notification of the change in performance.
If new versions of the software are provided, evoach shall grant the customer the rights listed in Section 3 accordingly for the respective new version.
4.2 System operation
evoach shall ensure that the software provided is operated in an environment and configuration 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, power supply, air conditioning, firewalling, virus checking, broadband Internet connection. In the case of hosting on the customer's premises, evoach passes on any changes in requirements in good time to the customer's IT organization, which then takes care of them in consultation with the customer. The costs for in-house hosting are borne by the customer.
evoach performs daily backups of the data. By means of a restore procedure, evoach can perform the restore of the customer's data at the customer's express request.
4.3 System availability
The availability is 99% on an annual average. The integration and provision in intranet or learning catalog is the responsibility of the customer. This is not part of the SaaS scope of services. The downtime is determined in full minutes and is calculated from the sum of the fault clearance times per year. Excluded from this are those periods that evoach designates as so-called maintenance windows for optimization and performance enhancement, as well as time lost in fault elimination due to reasons for which evoach is not responsible and failures due to force majeure.
4.4 Disturbances of the system availability
Disruptions to system availability must be reported by the customer immediately after they become known. Before reporting the fault, the customer must check his area of responsibility. In the case of fault reports received within support hours, fault clearance shall commence on the same working day. In the case of fault reports received outside support hours, fault clearance shall commence 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) shall not be counted towards the fault clearance time.
§ 5 Warranty
According to the state of the art it is not possible to exclude errors in software under all application conditions. evoach guarantees, however, that the coaching software is basically usable. The period of limitation is one year.
Reproducible errors in the coaching software will be eliminated by evoach free of charge within a reasonable period of time. evoach may, at its own discretion, either repair or replace the software in order to fulfill its warranty obligation. In particular, evoach can provide the customer with a new version of the software to fulfill the warranty obligation. It is equivalent to rectification of a fault if evoach supplies an alternative solution to the faulty function which allows the customer to use the software in accordance with the contract.
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 extensions to the software specified in the contract, unless the customer proves that the errors are not causally related to the changes or extensions.
If a significant program error is not remedied by evoach in accordance with the aforementioned conditions, the customer may demand a reduction of the monthly SaaS fee.
evoach does not guarantee the fulfillment of the customer's individual requirements by the software specified in the contract. This applies in particular to the non-achievement of the intended economic success. Only the direct customer shall be entitled to warranty claims against evoach and such claims may not be assigned.
§ 6 Limitation of liability
In any case, evoach's contractual as well as tortious liability is limited to the repayment of the license fee, except in cases of intent and gross negligence for personal injury. Liability for loss of profit is excluded.
No liability shall be assumed by evoach for disruptions on telecommunication connections, for disruptions on line paths within the Internet, in the event of force majeure, for the fault of third parties or the customer himself. evoach shall not be liable for damages incurred if the customer passes on passwords or user IDs to unauthorized persons.
§ 7 Remuneration
A monthly fee agreed upon in the contract is charged for the coaching software. The fees incurred will be invoiced in advance over a period of time.
§ 8 Terms of payment
Payments are made by direct debit or credit card clearing. If the payment deadline is exceeded, services can be limited in case of default.
The customer shall not be entitled to offset claims against evoach unless the claims are legally established or recognized by evoach in writing.
§ 9 Confidentiality, data protection
The contracting parties undertake to keep secret any knowledge gained within the scope of the subject matter of the contract - in particular technical or commercial data and other knowledge - and to use it exclusively for the purposes of the subject matter of the contract.
This shall not apply to information that is publicly accessible or becomes publicly accessible without unauthorized action or omission on the part of the contracting parties or must be made accessible due to a court order or a law. In case of support in case of problems of the customer it may become necessary to access data records of the customer. 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.
If personal data must be processed within the scope of the subject matter of the contract, evoach and the customer shall comply with the statutory data protection provisions.
In accordance with the German Data Protection Regulation (DSGVO), evoach points out to the customer that customer data will be stored.
§ 10 Final provisions
The place of jurisdiction for both contracting parties is Karlsruhe. The law of the Federal Republic of Germany shall apply exclusively. The contract, its supplements and amendments as well as changes in form must be in writing.
Should any provision of the contract be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties undertake to replace the invalid provision with one that comes as close as possible to the economic intent. The same shall apply if a loophole should become apparent in the contract.