Terms and Conditions

Evomation – Michael Meese e.K.
Im Frettholz 5
32108 Bad Salzuflen, Germany

Commercial register: HRA 6224
Register court: Amtsgericht Lemgo
VAT ID: DE354802166

The following General Terms and Conditions of EVOMATION – IT services and the sale and delivery of standard hardware and software (hereinafter "Terms") apply to all contracts concluded between the client and the contractor that relate, among other things, to IT services (e.g. consulting, support, administration, project services) and to the sale and delivery of standard hardware and software (including third-party licenses and subscriptions) on behalf of the client. They apply to all future business relationships, even if they are not expressly agreed again.

The client’s general terms and conditions are hereby rejected. Deviating terms of the client that are not expressly accepted by the contractor are not binding on the contractor, even if they are not expressly rejected. The parties will confirm contract conclusions, agreements, and deviating side arrangements that are not declared in text form at least in text form.

1. Offers, Contract Conclusion, Scope Changes

1.1 Offers and effort estimates are non-binding unless expressly marked as binding. Effort estimates are planning values; deviations may occur during implementation and will be billed on a time-and-material basis.

1.2 A contract is formed by (a) written/electronic order confirmation by the contractor, (b) acceptance of an offer expressly marked as binding by the client in text form, or (c) commencement of performance by the contractor after an order has been placed by the client.

1.3 Changes and extensions to the scope of services (e.g. change requests) require agreement in text form. The contractor will inform the client of any effects on deadlines, effort, and costs.

1.4 Procurement of hardware and software on behalf of the client: Unless expressly agreed otherwise, the contractor procures hardware and software in its own name and on its own account and resells it to the client. For standard software and licenses, the license and usage terms of the respective manufacturer/licensor take precedence; the client must comply with them.

2. Performance, Cooperation, Acceptance, Deadlines

2.1 Unless a work contract is expressly agreed (e.g. a clearly defined project outcome with acceptance), the contractor provides services. For services, the contractor owes professionally performed activity, not a specific economic or technical outcome.

2.2 Deadlines and dates are binding only if expressly agreed in text form as binding. Delivery and performance dates are subject to timely and proper self-supply where the contractor has entered into a congruent covering transaction.

2.3 The client is obliged to provide the cooperation required for performance in a timely and complete manner (e.g. provision of information, access, contacts, test data, approvals). Delays and additional effort due to missing cooperation are borne by the client.

2.4 Support and service hours, response times, and availability commitments apply only where expressly agreed in an SLA or offer. Without separate agreement, there is no entitlement to a specific availability or response time.

2.5 Acceptance for work contracts: Where a work contract is agreed, the client will promptly review the work result and declare acceptance or notify defects in text form. If no acceptance or defect notice is given within 10 business days after provision, the work result is deemed accepted, provided the contractor pointed this out to the client upon provision.

2.6 Force majeure: Events of force majeure (e.g. power outages, official measures, strikes, natural events, disruptions to telecommunications networks, failures of upstream suppliers/cloud providers) release the parties from performance obligations for the duration and scope of the disruption. Deadlines are extended appropriately.

3. Remuneration, Billing, Payment Terms

3.1 All prices are net plus the applicable statutory value-added tax, unless expressly stated otherwise.

3.2 Unless otherwise agreed, services are billed on a time-and-material basis at the agreed hourly rates. Travel time, expenses, and other outlays are charged as agreed, or subsidiarily based on actual effort.

3.3 Billing of services rendered takes place after project completion, at agreed milestones, or at the end of a month – whichever occurs first. The contractor is entitled to issue interim invoices, at least monthly.

3.4 Hardware and software (including licenses/subscriptions) is generally billed immediately, in particular once the contractor begins use/setup within a client project (e.g. server provisioning, installation, configuration). The contractor is entitled to require advance payment in this respect.

3.5 Invoices are due for payment without deduction within 14 days of receipt. In the event of default, the statutory provisions apply, in particular Section 288 BGB (default interest) and the flat-rate default charge pursuant to Section 288 (5) BGB, where applicable.

3.6 The client may set off only against undisputed or legally established claims. The client may exercise a right of retention only to the extent it relates to the same contractual relationship.

4. Delivery of Hardware/Standard Software, Transfer of Risk, Retention of Title

4.1 Delivery dates are binding only if expressly agreed as binding. Partial deliveries are permitted where reasonable for the client.

4.2 In the case of shipment, the risk of accidental loss and accidental deterioration passes to the client upon handover to the carrier.

4.3 Delivered goods remain the property of the contractor until full payment of all claims arising from the business relationship (retention of title). The client is entitled to resell in the ordinary course of business; the resulting claims are hereby assigned to the contractor in the amount of the invoice value. The contractor accepts the assignment.

5. Usage Rights to Work Results

5.1 Where work results are created in the course of development or configuration services (e.g. scripts, program files, documentation, concepts), the contractor grants the client a simple (non-exclusive), non-transferable right of use for the client’s own purposes, subject to full payment.

5.2 The contractor reserves the right to reuse and further develop developed components, concepts, and procedures in abstracted form for its own purposes and in other projects, provided that no confidential information or trade secrets of the client are disclosed.

5.3 For standard software, the license terms of the respective manufacturer/licensor take precedence. The contractor does not grant usage rights beyond those.

6. Defect Claims / Warranty

6.1 For defect claims in purchase/delivery contracts and work contracts, the statutory provisions apply unless otherwise agreed below.

6.2 The limitation period for defect claims in B2B transactions is 12 months from delivery or acceptance. Claims in cases of intent or gross negligence, injury to life, body or health, fraud, assumption of a guarantee, and mandatory statutory liability (e.g. product liability) remain unaffected.

6.3 The client must promptly inspect delivered goods and notify recognizable defects promptly in text form. In commercial transactions, Section 377 HGB applies.

6.4 For services, defect claims exist only in accordance with the statutory provisions for service contracts; in particular, the contractor does not owe a specific outcome for services. Any manufacturer warranties are granted exclusively under the conditions of the respective manufacturer.

7. Liability

7.1 The client’s claims for damages and reimbursement of expenses (hereinafter: damage claims), regardless of legal ground, in particular due to breach of duties from the contractual relationship and from tort, are excluded to the extent they exceed the scope described in these Terms.

7.2 Subject to individually agreed provisions, the contractor is liable under statutory provisions for its own fault and the fault of its legal representatives and vicarious agents only in cases of intent and gross negligence, in cases of mandatory statutory liability, in the event of guaranteed characteristics of software, and in the event of injury to life, body or health. If the contractor is responsible for breach of essential contractual duties due to slight negligence, its liability is limited to compensation for the typical foreseeable contractual damage. Essential contractual duties within the meaning of this limitation of liability are those whose fulfillment enables proper performance of the contract in the first place, whose breach jeopardizes achievement of the contractual purpose, and on whose compliance the client regularly relies for these reasons. The above provisions do not change the burden of proof to the client’s disadvantage.

7.3 To the extent damage claims are owed to the client under this section, they become time-barred within one year. For damage claims under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health, or breach of essential contractual duties, the statutory limitation provisions apply.

7.4 To the extent liability for damages to the client is excluded or limited, this also applies to the personal liability for damages of the contractor’s employees, workers, staff, representatives, and vicarious agents.

8. Confidentiality

The parties undertake to keep confidential information of the other party secret and to use it only for performance of the contract. The obligation does not apply where the information (a) is generally known, (b) becomes known without breach of contract, (c) is lawfully obtained from third parties, or (d) must be disclosed due to a statutory obligation.

9. Data Protection

9.1 Where the contractor processes personal data on behalf of the client, the parties will conclude a data processing agreement (DPA) pursuant to Art. 28 GDPR before processing begins.

9.2 Without express agreement, the contractor does not process client data content for its own purposes. Support cases may require the client to provide data/logs; the client ensures it is authorized to do so and limits any personal data to the minimum required.

10. Place of Performance / Jurisdiction / Applicable Law

10.1 Unless otherwise agreed, the place of performance for all services including returns is Bielefeld.

10.2 The local and international place of jurisdiction is the Amtsgericht or Landgericht Bielefeld, including for cheque and bill-of-exchange actions and for claims asserted in dunning proceedings. However, the contractor is also entitled to sue at the client’s registered office or, as an active or passive participant, to choose arbitration proceedings pursuant to Section 11. As a future defendant or otherwise passive participant in court proceedings, the contractor is obliged to exercise its choice under sentence two of this paragraph promptly upon request by the client before proceedings begin.

10.3 German substantive law applies to the legal relationships connected with this contract, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

11. Arbitration

Where the contractor opts for resolution of disputes by an arbitral tribunal, disputes will be finally decided under the arbitration rules of the German Institution of Arbitration e. V. (DIS), excluding the ordinary courts. Unless otherwise agreed, the place of jurisdiction is determined pursuant to Section 10.2 above; the language of the proceedings is German.