§ 1 Scope & Subject Matter of the Contract
1.1 Applicability of the Terms: These Terms & Conditions apply to all business relationships between Evonius and its customers. The special provisions set out in § 10, § 11, and § 12 apply additionally if the customer uses the respective specific services described therein.
1.2 Deviating Terms: These Terms & Conditions apply exclusively. Deviating, conflicting, or supplementary terms & conditions of the customer shall not apply unless Evonius expressly agrees to their validity in text form. Individual agreements between the parties shall always take precedence.
1.3 Customer Groups: These Terms & Conditions apply to both consumers within the meaning of § 13 BGB and entrepreneurs within the meaning of § 14 BGB:
· Consumer is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business, or profession.
· Entrepreneur is a natural or legal person or a partnership with legal capacity who acts in the exercise of their commercial or independent professional activity when concluding a legal transaction.
§ 2 Contract Formation & Communication
2.1 Offers & Contract Formation: Unless expressly marked as binding, all offers by Evonius are subject to change. The contract is concluded through offer and acceptance. Evonius may accept the customer's offer within five business days, in particular by order confirmation in text form, provision of the service, or invoicing. There is no legal entitlement to the conclusion of a contract.
2.2 Communication: Communication primarily takes place in text form (e.g., via email). The customer is obliged to provide a valid email address and to regularly check their inbox.
2.3 Access Data & Security: For security reasons, Evonius never transmits passwords or other access credentials in plain text but always uses hashed procedures and secure password setup links. The customer is obliged to keep their access data confidential and protect it from unauthorized access. In case of suspected misuse, Evonius must be informed immediately.
2.4 Right of Withdrawal for Consumers: If the customer concludes the contract as a consumer (§ 13 BGB), they are entitled to a statutory right of withdrawal. Details are set out in Evonius' separate withdrawal policy. Note: The right of withdrawal expires prematurely for services if Evonius has fully performed the service or has begun performance after the consumer has expressly consented and acknowledged that they lose their right of withdrawal upon full performance of the contract.
§ 3 Scope of Services & General Obligations
3.1 Service Provision: Evonius provides IT, hosting, and SaaS services. Evonius is entitled to use qualified third parties (subcontractors) for service delivery.
3.2 Availability: Evonius guarantees an overall availability of 99.9% on a monthly average at the handover point (data center router exit). Excluded are periods in which the server is unavailable due to technical issues beyond Evonius' control (force majeure, external attacks) as well as scheduled maintenance windows announced in advance. Any further availability commitments arise exclusively from separate Service Level Agreements (SLA).
3.3 System Adjustments & Maintenance: Evonius is entitled to adjust services for compelling technical or security-related reasons. Planned maintenance is carried out, where possible, outside regular business hours and announced in advance.
3.4 Data Backup: The customer is responsible for regularly backing up their data. Unless expressly agreed as a separate service, Evonius is not obligated to perform data backups or restore customer data.
§ 4 Usage Rights & Intellectual Property
4.1 Grant of Rights: Evonius grants the customer a simple, non-exclusive, non-transferable, and non-sublicensable right for the duration of the contract to use the software and SaaS solutions provided under the contract for their own business purposes via the internet.
4.2 Restrictions: The customer is prohibited from renting, leasing, or otherwise providing the services, software, or infrastructure to third parties without prior written consent (e.g., via a separate reseller agreement). Reverse engineering, decompilation, or disassembly of Evonius software is prohibited unless legally required.
4.3 Intellectual Property & Reservation of Rights: All intellectual property rights, source code, databases, and designs of the services provided by Evonius remain exclusively with Evonius.
§ 5 Permitted Use & Misuse
5.1 Accurate Information: The customer is obliged to provide complete and accurate master data upon contract conclusion and to notify any changes without delay.
5.2 Prohibited Use: The customer agrees to use the services exclusively in compliance with applicable laws. In particular, the following are prohibited:
· Sending spam, bulk emails, or other unsolicited messages.
· Operating or distributing malware, malicious software, or phishing.
· Conducting network attacks (e.g., DDoS, port scanning, exploitation).
· Storing or distributing unlawful, copyright-infringing, extremist, or inciting content.
· Using the services in violation of export control or sanctions regulations (e.g., EU or US sanctions).
5.3 Content Responsibility & Indemnification: The customer is solely responsible for all content they store or process. Evonius does not perform content review. The customer fully indemnifies Evonius against all third-party claims arising from unlawful content or actions, including reasonable legal defense costs.
5.4 Suspension Rights: Evonius is entitled to temporarily or permanently restrict or suspend services if there is a breach of these Terms, concrete indications of unlawful content or actions, plausible claims by third parties, or if system integrity, security, or availability is at risk. Payment obligations remain unaffected.
§ 6 Prices & Payment Terms
6.1 Fees & Billing: Fixed fees are payable in advance for the respective billing period. Usage-based fees are billed retrospectively. All invoices are due within 14 days of receipt without deduction.
6.2 SEPA & Chargebacks: If SEPA direct debit fails due to reasons attributable to the customer (e.g., insufficient funds, incorrect bank details), the customer shall reimburse the actual bank fees incurred. Evonius reserves the right to claim further damages.
6.3 Default & Suspension: In case of payment default, Evonius may suspend services after prior reminder and reasonable deadline. Significant default exists if the customer is in arrears for two consecutive months. Suspension does not release the customer from payment obligations.
6.4 Set-off: The customer may only offset claims if they are legally established, undisputed, or acknowledged by Evonius.
§ 7 Contract Changes & Price Adjustments
7.1 Amendment of Terms: Evonius may amend these Terms with six weeks' notice. Essential provisions affecting the balance of performance and consideration are excluded. For consumers, deemed consent applies only under strict conditions. Customers are notified in text form and may object within four weeks.
7.2 Price Adjustments: Evonius may adjust fees to reflect increased costs (e.g., energy, hardware, third-party licenses). Cost reductions are passed on to customers accordingly. Increases are announced at least six weeks in advance.
7.3 Termination Right: If prices increase by more than 5% within 12 months, the customer may terminate the affected contract free of charge effective at the time of the increase.
§ 8 Warranty & Liability
8.1 Unlimited Liability: Evonius is fully liable for damages resulting from injury to life, body, or health due to intentional or negligent breach, as well as intent or gross negligence, and under mandatory product liability law.
8.2 Liability for Slight Negligence: In case of slight negligence regarding essential contractual obligations, liability is limited to foreseeable, contract-typical damages. Otherwise, liability for slight negligence is excluded.
8.3 Extended Limitation for Business Customers: For entrepreneurs, liability for slight negligence is limited to the net fees paid in the last 12 months for the affected service.
8.4 Exclusion of Warranty Liability: Strict liability for defects existing at contract conclusion is excluded.
8.5 Data Loss: Liability for data loss is limited to typical recovery effort assuming proper backups, unless caused intentionally or by gross negligence.
8.6 Force Majeure: Evonius is not liable for non-performance due to force majeure, including natural disasters, war, terrorism, power outages, pandemics, strikes, or external cyberattacks.
§ 9 Term & Termination
9.1 Ordinary Termination: Contracts are generally indefinite and may be terminated with one month’s notice. Fixed-term contracts convert to indefinite terms after expiry.
9.2 Form: Termination must be in text form (e.g., email or customer portal).
9.3 Extraordinary Termination: Either party may terminate for cause. Cause for Evonius includes payment default, insolvency, or serious breach of § 5.
9.4 Data After Termination: The customer is responsible for data export. Evonius may delete data 30 days after termination unless legal retention applies.
§ 10 Data Protection & Confidentiality
10.1 Data Protection: Personal data is processed in compliance with GDPR and applicable law. Details are provided in the privacy policy.
10.2 Data Processing Agreement (DPA): Where processing is performed on behalf of the customer, a GDPR Art. 28 agreement will be concluded prior to processing.
10.3 Confidentiality (NDA): Both parties agree to keep confidential information and trade secrets strictly confidential.
§ 11 Reference Usage
11.1 Marketing Use: Unless objected to, business customers grant Evonius the right to use their company name and logo as references in marketing materials.
11.2 Withdrawal: This consent may be revoked at any time with future effect.
§ 12 Domain Policy
12.1 Registration: Evonius registers domains on behalf of customers. The customer has a direct relationship with the registry. No guarantee is given for domain allocation.
12.2 Third-Party Rights: The customer is responsible for ensuring no infringement of third-party rights. No legal review is performed by Evonius.
12.3 Termination Handling: The customer must specify domain handling before contract end. Otherwise, Evonius may release or transfer domains according to registry rules.
§ 13 Reseller Terms
13.1 Resale: Resale requires participation in a reseller program. The reseller acts independently. No contractual relationship exists with end customers.
13.2 Liability: The reseller is liable for actions of end customers and indemnifies Evonius.
§ 14 Partner Program / Referral
14.1 Status: Participation does not establish employment or partnership.
14.2 Commissions: Commissions apply only to completed and fully paid contracts and may be adjusted in case of cancellations or misuse.
§ 15 Final Provisions
15.1 Governing Law: German law applies excluding CISG. Mandatory consumer protection laws remain unaffected.
15.2 Jurisdiction: For merchants, jurisdiction is Passau. Consumer jurisdiction follows statutory rules.
15.3 Severability Clause: Invalid provisions do not affect the remaining contract. A valid replacement reflecting economic intent applies.
15.4 Consumer Dispute Resolution: Evonius does not participate in consumer arbitration procedures.
15.5 Assignment Restriction: Rights may not be assigned without consent, except as provided by law.
15.6 Contract Transfer by Evonius: Evonius may transfer rights and obligations to affiliates or successors with prior notice. The customer may terminate the contract upon such transfer.