(1) The content and scope of the services to be provided by avency shall be determined by the respective offer confirmed by avency (individual contract).
(2) The currently valid service description and the current General Price List of avency are also constituent parts of the contract. In the event of contradictions between the order confirmation and the GTC, the provisions of the order confirmation shall take precedence.
(1) Offers made by avency are subject to change and non-binding, unless they have been at least designated or confirmed as binding by avency in text form.
(2) The order placed by the customer constitutes the binding offer. Individual contracts generally come into force only upon avency's order confirmation.
avency reserves the right to select qualified personnel for the provision of the contractually agreed services. Should specific personnel be named in the offer, avency is generally permitted to replace such individuals—even those in agreed key positions—without the customer’s consent. In suitable cases, avency is also entitled to employ qualified subcontractors without the customer’s consent.
(1) Unless otherwise agreed in the individual contract or stipulated by the special provisions in the following sections, the remuneration to be paid by the customer for avency's individual services shall be based on the General Price List. The provisions of the following paragraphs remain unaffected.
(2) All prices—unless otherwise agreed—are in Euros plus statutory value-added tax (VAT), if applicable.
(3) When billing according to Stunden, avency is entitled to charge for every commenced 15 minutes. Personentage shall be set at 8 Stunden. avency is entitled to charge for any Stunden exceeding this in accordance with the first sentence. For on-site services, calculation begins upon arrival at the place of assignment; for services via remote data transmission, it begins with the establishment of the Internet connection.
(4) Unless expressly agreed otherwise, the agreed remuneration is exclusive of any travel times, travel expenses, transport costs, material costs, or other expenses incurred by avency, which are to be reimbursed separately upon actual incurrence.
(5) The respective remuneration is due immediately upon receipt of the invoice. The invoice is payable within 10 days of the invoice date. Agreed monthly remuneration from continuing obligations must be paid monthly in advance, no later than the 5th working day of each month. Any deduction from the invoice requires a specific written agreement.
(6) avency may, at its discretion, adjust the agreed remuneration for consulting, support, and other services with a notice period of two months, effective at the beginning of a renewal period, by means of an adjustment declaration in writing or text form to the client, observing the prerequisites described below:
a) avency may adjust the remuneration at most to the extent that the index mentioned in subparagraph (b) below has changed (price adjustment framework). For the initial adjustment of the remuneration, the index change between the index level published at the time of contract conclusion and the index level most recently published at the time of the adjustment declaration is authoritative for the price adjustment framework. For further remuneration adjustments, the index development between the index level most recently published at the time of the previous adjustment declaration and the index level most recently published at the time of the new adjustment declaration shall be authoritative.
b) The index of average gross monthly earnings of full-time employees in Germany for the economic sector "provision of information technology services" (currently published in quarterly figures by the Federal Statistical Office in Specialist Series 16, Series 2.2, Group J62) shall be used as the basis for determining the price adjustment framework. Should this index no longer be published, the index published by the Federal Statistical Office that most accurately reflects the development of average gross monthly earnings in the aforementioned economic sector shall be authoritative for determining the price adjustment framework.
c) If the client does not terminate the contract at the latest one month before the end of the previous contract term to take effect at the end of that term (special right of termination), the adjusted remuneration shall be considered agreed upon the automatic renewal of the contract for the renewal period. avency will point this out in the adjustment declaration.
d) In the event of a reduction in the price adjustment framework, the client may demand a corresponding reduction in the remuneration in accordance with the preceding paragraphs.
(7) Vorstehender applies accordingly to the adjustment of software rental fees.
(1) In individual cases, avency may offer the customer to acquire a contingent of Stunden (project budget) for a one-time payment, or a regular hourly contingent (support budget) for a specified period for a recurring fee.
(2) If avency subsequently provides services for the customer for which the customer owes remuneration based on time, the respective project or support budget shall be reduced by the time spent by avency. If the customer's project or support budget is exhausted, the customer owes avency remuneration for any work performed beyond this based on the agreed price list or, if no individual price list has been agreed, based on the general price list. avency will notify the customer in good time regarding the consumption of the contingent.
(3) If the customer acquires a project budget, the hourly contingent contained therein shall expire, subject to other express agreements, after the expiration of the agreed time; in the absence of an agreed time, it expires at the end of avency's business year following the agreement (January 1 – December 31). The customer is obliged to notify avency in good time before the expiration of the remaining hourly contingent whether, when, and for which activity they will claim it. If such notification is omitted, the customer may claim a maximum of 1/12 of the total hourly contingent in each remaining month until expiration.
Unless otherwise agreed in a framework agreement, the respective individual contract, or according to the special conditions of these GTC, contracts regarding continuing obligations or recurring services have a minimum term of 24 (twenty-four) months, beginning at the time of signing the respective contract; in the absence of a signature, upon receipt of the declaration of acceptance. The respective contract may be terminated by either party in writing with a notice period of three months to the end of the minimum contract term. Otherwise, the contract automatically extends by another twelve months each time and may be terminated by either party in writing, observing the aforementioned notice period of three months, to the respective end of the renewal period. The right to extraordinary termination for good cause remains unaffected.
(1) The customer may only set off against claims by avency if the underlying counterclaims are undisputed, legally established, or ripe for adjudication.
(2) The customer is only authorized to assert a right of retention if the underlying counterclaims are based on the same contractual relationship and are undisputed, legally established, or ripe for adjudication.
(1) If, according to these General Terms and Conditions or a separate individual contract, avency owes the customer the granting or transfer of usage rights, the granting or transfer of the respective usage right shall be subject to the condition precedent of the fulfillment of all claims arising from the customer's contractual relationships with avency.
(2) Until the condition in paragraph 1 is fulfilled, avency grants the customer a usage right exclusively to the extent strictly necessary for fulfilling the purpose of the contract (e.g., acceptance test).
(3) avency shall waive the condition in paragraph 1 to the extent that 2/3 of the value of the usage rights subject to this condition exceeds the total of the claims avency is entitled to against the customer.
Deadlines are only binding if this has been expressly agreed in writing or in text form (e.g., e-mail). In the event of delays for which avency is not responsible, particularly in the case of a breach of cooperation duties by the customer, the deadlines affected by the delay shall be postponed appropriately; the statutory claims of the parties remain unaffected.
(1) The customer shall support avency in the provision of services to a reasonable extent.
(2) In particular, the customer shall provide the following services:
a) The customer shall appoint a responsible person and a deputy who will serve as contact persons for all matters in connection with the execution of the respective individual contract. The contact person is familiar with the framework conditions relevant to the execution of the contract on the customer's side (e.g., information technology used, software) and is authorized to make declarations that are necessary as interim decisions in the context of the continuation of the contract. Only the contact person and their deputy are authorized to submit trouble reports. The customer is entitled to change the responsible person and deputy. In such a case, the customer shall notify avency immediately.
b) The customer shall describe and document malfunctions and/or defects, the rectification of which they desire by avency, in such detail (e.g., via screenshots) that they can be identified and reproduced. As far as it is possible and reasonable for the customer, they are also obliged to explain the causes of malfunctions and defects and to prove them in case of dispute.
c) The customer shall provide avency with suitable remote access (e.g., via SSH, VPN, TeamViewer) and open it upon avency's request.
d) The customer guarantees the legality of all software usage rights required in connection with avency's services.
e) The customer shall perform regular data backups, particularly immediately before the execution of IT-Service- or work services by avency, in order to enable restoration in case of data loss, and to hand them over upon avency's request for the purpose of restoration.
f) The customer shall provide avency with the information, documentation, and records from their sphere required for the provision of services. The customer shall immediately notify avency in writing or in text form of any changes in their sphere that have an impact on the services to be provided by avency (e.g., changes in operating conditions).
g) The customer will grant the personnel deployed by avency for the provision of services access to the place of assignment and instruct their employees to cooperate with avency and any vicarious agents, as far as this is necessary for the provision of the service.
h) The customer shall provide avency with on-site workspaces and an opportunity for the protected storage of materials near the customer's work area free of charge when necessary.
i) The customer shall keep passwords and access data secret from unauthorized third parties and store them in such a way that access to this data by unauthorized third parties is prevented to avoid misuse by third parties.
(3) Cooperation duties are contractual primary obligations of the customer.
(4) If the customer does not fulfill their cooperation duties, or does not do so in time or completely, despite being requested by avency, avency may provide this service themself instead of the customer. avency is entitled to invoice the resulting effort to the customer separately according to the General Price List. Other claims by avency remain unaffected.
(5) If the customer neglects a cooperation duty incumbent upon them despite a reminder and the setting of a reasonable deadline, avency is entitled to terminate for good cause and, regardless of the assertion of this right of termination, has a claim for damages resulting from the omitted cooperation.
(1) If the customer wishes to change the requirements of the agreed service, avency will agree to this, provided it is reasonable for avency, particularly regarding the effort and any scheduling. The change request is, in particular, unreasonable if the success of the service could be endangered from avency's perspective because, as a result, a disproportionately increased effort arises or the scheduling and service planning is endangered. avency is entitled to check the customer's change request and will inform the customer within a reasonable period, especially taking into account the type and scope of the change request, whether it is reasonable for avency. If the change request is unreasonable from avency's perspective, avency is entitled to propose an alternative solution.
(2) Changes must be agreed in writing or in text form.
(3) Insofar as the implementation of a change request affects the contract terms, avency may demand an appropriate adjustment of the contract terms, in particular an increase in remuneration or the postponement of deadlines.
(1) Unless otherwise provided in the following provisions, avency shall be liable in accordance with statutory provisions.
(2) avency is liable without limitation for damages caused intentionally or through gross negligence by avency, one of their vicarious agents, or legal representatives, as well as for damages resulting from injury to life, body, or health. avency is likewise liable without limitation for damages due to the absence or loss of a warranted characteristic or in the event of non-compliance with a guarantee, unless otherwise regulated.
(3) In all other cases, avency is only liable insofar as there is a breach of a fundamental duty, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the respective other party to the contract could rely ("cardinal duty"). Liability is limited to the amount of the typical, foreseeable damage.
(4) In the case of data loss caused by simple negligence, avency is only liable for the damage that would have occurred even with proper and regular data backup by the customer, appropriate to the importance of the data.
(5) The aforementioned liability exclusions/limitations do not apply insofar as mandatory law (e.g., liability under the Product Liability Act or the GDPR) conflicts with them.
(1) If a third party asserts the infringement of property rights against the customer due to the use of avency's services, in particular the provision of software, the customer shall immediately inform avency thereof in writing and, as far as possible, leave the defense against these claims to avency. In doing so, the customer will grant avency every reasonable support. In particular, the customer will transmit all necessary information regarding the deployment and any processing of the software to avency in writing and provide avency with existing documentation. In this regard, the customer is prohibited from acknowledging the third party's claims, entering into a settlement with them, or making any other legal declarations to the third party that are likely to impair the defense against the property right infringement, without prior written consent from avency.
(2) Insofar as third-party property rights are infringed, avency may, at its option, perform subsequent fulfillment by:
(1) Reaction and Störungsbehebungszeiten require an express agreement.
(2) The reaction time begins with the receipt of the trouble report by avency and does not run outside of the support time. A reaction is fulfilled when avency begins the malfunction diagnosis and, in the case of telephone/written contact with the customer, when this appears necessary for rectifying the malfunction. A trouble rectification time begins with the expiration of the reaction time and is complied with if avency has rectified the reported malfunction within the agreed time. The trouble rectification time only runs within the support time. Insofar as the customer does not perform necessary cooperation actions or does so with a delay, the reaction and Störungsbehebungszeiten times shall be extended accordingly.
(3) In the absence of agreed times, the support time is Monday to Friday from 9:00 a.m. to 5:00 p.m. on nationwide German working days.
(1) The customer is obliged to treat all knowledge of confidential information and business secrets ("business secrets") of the respective other party to the contract obtained in the context of contract initiation and execution as confidential for an unlimited period and to use them only for the purposes of executing the individual contract.
(2) The preceding obligations do not apply to business secrets that:
a) were already publicly known or known to the other party to the contract at the time of their transmission by the other party;
b) became publicly known after their transmission by the other party without fault of the other party to the contract;
c) were made accessible to the other party to the contract by a third party after their transmission by the other party in a non-unlawful manner and without restriction regarding confidentiality or exploitation;
d) were developed independently by one party to the contract without using the business secrets of the other party to the contract;
e) must be published in accordance with the law, official order, or court decision - provided the publishing party informs the other party to the contract thereof immediately and supports them in defending against such orders or decisions; or
f) insofar as the use or disclosure of the business secrets is permitted to the other party to the contract due to mandatory legal provisions or these GTC.
(3) avency processes personal data of the customer only within the framework of the applicable data protection laws, in particular the GDPR.
(4) If necessary, the parties to the contract shall conclude a data processing agreement pursuant to Art. 28 GDPR.
(1) The following provisions apply to documents and work results provided by avency or by third parties commissioned by avency. For these purposes, work results are all consulting services, work services, in particular development services, information, technologies, or comparable contents that avency makes available in fulfillment of the contract:
a) All documents and work results are intended for use exclusively by the customer within the framework of the use agreed in the contract, assumed under the contract, or otherwise customary.
b) Unless separately agreed in individual cases, the customer is not entitled to disclose documents and work results, as well as excerpts from or summaries of the aforementioned, or to refer to avency in connection with the service. This does not apply:
i. insofar as the customer is legally obliged to disclose them – in such a case, the customer will inform avency thereof immediately;
ii. towards affiliated companies pursuant to § 15 of the German Stock Corporation Act (AktG), advisors to the customer or to affiliated companies who are legally obliged to secrecy (e.g., lawyers or tax consultants), as well as other advisors to the company, provided it is ensured that the provided work results and documents fall under the protection of the Business Secrets Protection Act;
iii. otherwise after separate prior consent by avency, which must be given at least in text form.
c) Insofar as the customer is entitled to disclose documents or work results in an individual case, they are not permitted to make any changes to them.
(2) avency retains the rights to their already existing intellectual property. Unless otherwise agreed in an individual case, all rights to intellectual property developed during the provision of the service, including already existing drafts, with the exception of any intellectual property of the customer contained therein, shall belong exclusively to avency. The customer only receives a simple and unlimited usage right, limited according to the preceding provisions.
(1) The assignment and pledging of claims arising from this contract by the customer are excluded.
(2) Goods remain the property of avency until full payment is made.
(1) If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be avency's place of business in Ostbevern. The same applies if the customer is an entrepreneur pursuant to § 14 of the German Civil Code (BGB). However, avency is also entitled in all cases to file suit at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement, or at the customer's general place of jurisdiction. Priority statutory provisions, particularly concerning exclusive jurisdictions, remain unaffected.
(2) For all legal relationships between avency and the customer, the law of the Federal Republic of Germany applies, to the exclusion of laws regarding the international purchase of movable goods, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) The contract language is German.
(4) Insofar as these GTC do not provide otherwise, contracts can only be amended, canceled, or supplemented in writing. This also applies to the amendment of the requirement for the written form.
(5) Should individual provisions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same applies in the case that the parties subsequently discover that the contract is incomplete.
These special conditions apply to all services such as general consulting services (including training) or the provision of IT services, insofar as these are not maintenance and care services agreed upon in individual cases according to Section E.
(1) IT services are understood to mean, in particular, maintenance and repair as well as support services. For IT services, avency only owes support in establishing and ensuring use, e.g., in installing, uninstalling, and configuring software, assembly and dismantling, the preparation, repair, or destruction of hardware, the creation, transfer, or deletion of data, as well as comparable services.
(2) In the provision of IT services, avency generally resorts to software and hardware manufactured by third parties. This software and hardware may contain errors or be inadequately documented, which makes it impossible for avency to prepare the software or hardware in the manner desired and agreed upon by the customer. Since avency is highly dependent on third parties here, in particular also on those with whom there is no performance relationship – e.g., when using Open Source Software –, avency cannot provide any guarantee in the provision of IT-Service that the software or hardware can be prepared in the manner desired by the customer; in this case, avency only owes the earnest effort to do so.
(3) Insofar as avency provides support in maintenance and repair, these services are not subject to acceptance and are only owed by avency insofar as they are expressly agreed upon in an individual case. The conditions agreed in individual contracts and any service descriptions apply to them.
(4) Not the subject of software maintenance are, in particular, development services; avency will therefore only support the installation of updates supplied by the software manufacturer. Unless otherwise agreed in the individual contract, this only includes security and quality updates, but not functional updates, upgrades, version, or release changes.
(5) The customer is obliged to inform avency with lead time of at least 2 weeks about changes initiated by them to the system environment or provisions, insofar as these affect the contractual duties of maintenance and care services of avency.
(6) The customer is obliged to inform avency in good time about changes made to the system components not initiated by avency, insofar as these affect the provision of the contractual services of avency. This obligation applies regardless of whether the customer is entitled to such a change or not.
(7) If avency finds adverse effects of these changes, avency will inform the customer thereof. In this case, avency is entitled to demand an adjustment of the contract according to the changes. If an agreement on the adjustment of the contract is not reached within a reasonable acceptance period set by avency, avency is entitled to terminate the contract for good cause without observing a notice period.
(1) For the duration of the agreed support services, avency assumes support for the software made available to the customer, and in expressly agreed cases, also for any hardware. In the context of support services, avency will provide the customer with access to a ticket system for answering questions about use and operation.
(2) The support is available to the customer on German nationwide working days from Monday to Friday during the times specified in the support contract; in the absence of agreed times, from Monday to Friday from 9:00 a.m. to 5:00 p.m. (CET/CEST). Trouble reports and support queries regarding the software are received via e-mail or—insofar as agreed between the parties—directly via the ticket system provided by avency.
(3) avency can only provide assistance for the software made available and looked after by avency if online access is available. This relates in particular to malfunction diagnosis in files and applications. The online access must be ensured by the customer.
(1) The following malfunction or defect classes apply:
(2) Reaction and Störungsbehebungszeiten require an express agreement. Regarding malfunction class 3, reaction times and Störungsbehebungszeiten are at avency's discretion. Otherwise, Section A 14 (2) (Reaction and Störungsbehebungszeiten) applies accordingly.
The special conditions for work performance apply to all services provided by avency for the customer in cases where avency promises the achievement of a tangible result, provided that this has been agreed upon in writing or text form. Work performance may in particular include the customer-specific creation, modification, or expansion of software (Development Consulting), the installation and setup of software, as well as comparable IT services, if this has been expressly agreed upon and does not fall under the IT services according to Section B 2 (1) and (2) of these GTC.
(1) The scope of services is derived from the respective individual contract; in the case of agile software development, it is derived from the respective Epics and User Stories (Scrum) or comparable artifacts. Software documentation is provided exclusively in electronic form.
(2) avency shall provide individual software to the customer in object code and, as a rule, without system-technical documentation. The obligation to provide the source code requires an express written agreement.
(1) Unless otherwise agreed in the individual contract regarding intended use, avency transfers to the customer—insofar as individual software has been created—a non-exclusive, non-sublicensable, non-transferable right, limited to the agreed usage period, to use the individual software within the scope of the stated purposes of the respective individual contract. Further rights, such as modification, translation, editing, etc., require an express agreement in writing or text form.
(2) The right of use refers to the individual software in object code. In the absence of an express agreement to the contrary, avency is not obliged to provide the software to the customer in source code.
(3) The granted right of use does not include the right to edit, change, translate, or otherwise rework the software. The customer may not decompile, disassemble, or subject the software to other reverse engineering measures, except as permitted under § 69e of the German Copyright Act (UrhG) even without the consent of the rights holder.
(4) Without express prior written permission from avency, the customer is not entitled to transfer the use to a third party, in particular to rent or lease it.
(5) avency is only obliged to provide tools required for the creation of the individual software, or to transfer rights thereto, based on a separate written agreement.
(6) Rights to inventions made during the performance of the contract belong—subject to separate written agreements—exclusively to avency.
(1) For the purpose of handover, avency will transmit a handover protocol to the customer with an invitation to perform a functional test and to declare (partial) acceptance within the agreed period. This can be done, for example, by avency assigning a corresponding task to the customer in a task management system.
(2) If no period for declaring (partial) acceptance is agreed upon, acceptance must be declared within a period of 10 days from receipt of the invitation by avency. If acceptance is not declared within the aforementioned period, the service is deemed accepted if usability is not significantly impaired at that time (deemed acceptance). To assess the degree of impairment of usability, the defect classes according to Section B 4 (Disturbance or Defect Classes) of these GTC shall apply.
(3) If defects of defect classes 1 and/or 2 (Section B 4 - Disturbance or Defect Classes) are identified during the acceptance test, the customer is entitled to refuse acceptance, unless these are caused by circumstances originating from the customer's sphere, such as, in particular, incorrect use or a faulty operating environment used by the customer or by third parties for the customer. If only defects of defect class 3 are identified, the customer is obliged to accept, but may place this under the reservation of defect rectification. Defects identified during acceptance, regardless of which defect class they are assigned to, must be comprehensibly documented by the customer. avency will rectify these within a reasonable period.
Section A 4 (Remuneration) of these GTC applies accordingly to the remuneration for work performance. In the absence of other agreements, in particular if no hourly contingent for billing has been agreed upon with the customer according to Section A 5, the customer is obliged to pay 100% of the contractually agreed remuneration upon placing the order.
(1) avency will provide the services free of material and legal defects. Any defects must be reported by the customer to avency, providing all information known to them that is useful for their detection. Warranty for software defects presupposes that a defect is reproducible or can be represented by machine-generated output.
(2) avency assumes no warranty for errors, disturbances, or damages attributable to improper operation, use of unsuitable operating resources, or abnormal operating conditions. Warranty claims are further excluded if the customer modifies the program (source code or object code) or interferes with it in any other way (e.g., by changing the configuration), unless the interference is demonstrably not the cause of the error.
(3) avency is entitled, at its discretion, to rectify the error through written or machine-readable correction measures or, if reasonable for the customer, through workaround measures. avency is further entitled to perform the correction by installing an improved version of a program (update). Furthermore, avency is entitled to perform error analysis and correction via remote maintenance, provided that mutual necessary facilities are available and the customer establishes remote maintenance access in compliance with data protection and information security principles.
(4) If avency is unable to rectify the defect despite multiple attempts—for which avency must be granted reasonable time and opportunity—the customer is entitled to rescind the contract or reduce the remuneration regarding the defective delivery and service. Before asserting these rights, the customer must announce this to avency while setting a reasonable deadline.
(5) If avency has taken action based on a defect report from the customer without the customer being able to prove the existence of a defect, the customer shall bear the costs of the error analysis.
(6) If partial services are accepted according to the contractual agreement, the limitation period for defect claims begins on the day of partial acceptance. The claim to subsequent performance, rescission, reduction, damages, and reimbursement of futile expenditures becomes time-barred one year from acceptance. The right to self-rectification (§ 637 BGB) is excluded.
Without prejudice to the right under § 648 BGB (German Civil Code), in the event of termination by the customer, avency is entitled to demand the agreed remuneration for the service provided in full, and for the service not yet provided, minus a flat rate of 25% for saved expenses and/or acquisition due to other use of manpower. The customer retains the possibility to prove that the sum of saved expenses and/or the acquisition due to other use of manpower, or its malicious omission, exceeds the flat-rate expense allowance. Managed Cloud Services may be the subject of a separate contract.
(1) The special conditions for permanent standard software transfer apply to the unlimited transfer of software by avency.
(2) These special conditions are not applicable to the provision of software which is made available by avency or directly by third parties via software rental (Section F and Section G).
(1) If the transfer of standard software is agreed upon, avency transfers this standard software to the customer according to the agreements of the respective individual contract and makes it available to them. Unless otherwise agreed in the respective individual contract regarding intended use, the non-exclusive, permanent, irrevocable, and non-terminable right to use the standard software to the agreed extent—i.e., in particular to store and load it permanently or temporarily, display it, and run it—transfers to the customer at the time of delivery.
(2) If avency transfers third-party standard software to the customer, the terms of use of the third party apply in addition.
(3) The granted right of use does not include the right to edit, change, translate, or otherwise rework the software. The customer may not decompile, disassemble, or subject the software to other reverse engineering measures, except as permitted under § 69e UrhG even without the consent of the rights holder.
(4) In the absence of an express agreement to the contrary, avency is not obliged to provide the software to the customer in source code.
(1) For the granting of the non-exclusive and non-transferable right of use to the transferred software, the customer generally pays a one-time fee (license fee) and, if applicable, an ongoing, generally monthly, remuneration for the delivery of updates (maintenance fee).
(2) The license fee is due for payment in advance upon order. This also applies if the software or its setup/adaptation requires acceptance.
(3) The creation of software as well as other services (installation, setup, adaptation, etc.) must be remunerated by the customer at the rates of the currently valid price list, unless otherwise agreed in writing or text form.
(1) If the customer exercises their right to transfer the right of use, they must impose their contractual obligations regarding the content and scope of the usage rights upon the third party and provide evidence thereof to avency. Upon transfer to the third party, the customer is no longer entitled to use the software.
(2) The customer is obliged to destroy or permanently delete any copies made. However, the customer is entitled to retain and use one copy exclusively for testing and archiving purposes.
(1) avency shall transfer the software free of material and legal defects. For third-party standard software, the warranty is limited to compliance with the contractually agreed software specifications of the respective manufacturer.
(2) Any defects must be reported by the customer, providing all information known to them that is useful for their detection. Warranty for software defects presupposes that a defect is reproducible or can be demonstrated through machine-generated output.
(3) This warranty period begins upon delivery in the case of standard software, otherwise upon acceptance of the software, and ends after 12 months.
(4) avency assumes no warranty for errors, disturbances, or damages attributable to improper operation, use of unsuitable operating resources, or abnormal operating conditions.
(5) If avency is unable to rectify the defect despite multiple attempts—for which avency must be granted reasonable time and opportunity—the customer is entitled to rescind the contract or reduce the remuneration regarding the defective delivery and service. Before asserting these rights, the customer must announce this to avency while setting a reasonable deadline.
(6) If avency has taken action based on a defect report from the customer without the customer being able to prove the existence of a defect, the customer shall bear the costs of the error analysis.
The special conditions for software maintenance and care apply insofar as the customer has agreed with avency on software maintenance and/or care for specific software, e.g., within the framework of a permanent standard software transfer according to Section D.
(1) Standard Software Maintenance and Care: As part of standard software maintenance and care, avency provides updates that maintain the functionality and marketability of the software. Software maintenance and care include:
(2) Extended Maintenance and Care: Adaptation to implement changes in legal regulations and technical standards.
For software that is the subject of software maintenance and care, avency will also provide updates for software adaptation upon separate request by the customer and for separate remuneration, which are necessary to implement changes in legal regulations and technical standards in order to maintain the usability of the software for its intended use.
(3) The following are not subject to software maintenance and care:
avency owes software maintenance and care only for the latest program version, but not for earlier versions.
(1) For standard software maintenance and care, avency shall receive the remuneration agreed upon in the individual contract; in the absence of such an agreement, remuneration shall be based on time and effort according to the general price list of avency.
(2) Unless expressly agreed otherwise, updates within the framework of "extended software maintenance and care" as defined in Section E 2 (2) are not covered by an agreed flat-rate remuneration and will be charged according to the general price list.
For updates provided within the framework of software maintenance, avency grants the customer the same rights that avency granted the customer for the original software.
(1) avency will remedy defects in the transferred software, including documentation, in accordance with statutory requirements, at avency's discretion, by free subsequent improvement or replacement delivery.
(2) Otherwise, Section D 5 (Warranty for Permanent Software Transfer) shall apply accordingly regarding the customer's defect rights.
avency is entitled to make new versions of the software available. The customer's rights under this section shall then apply exclusively to the latest version of the software. If and to the extent that the provision of a new version or a change involves a change in the functionalities of the software, the workflows of the customer supported by the software, and/or restrictions in the usability of previously generated data, avency will announce this to the customer in text or written form no later than six weeks before such a change becomes effective. If the customer does not object to the change in text or written form within a period of two weeks from receipt of the notice of change, the change shall become part of the contract. With every announcement of changes, avency will draw the customer's attention to the aforementioned deadline and the legal consequences of its expiry if the possibility to object is not utilized.
(1) The special conditions for software rental apply to the rental and provision of software by avency on a server that is generally operated at the customer’s location or, at the customer’s expense, by the customer or a third party commissioned by same at another location, e.g., a data center (Customer Server Solution). For the use of VARIOS AI by avency as a customer server solution, the conditions according to Section H take priority; otherwise, the conditions of this section apply.
(2) These special conditions are not applicable to the rental and provision of software that is rented and made available directly by third parties (e.g., Microsoft 365).
(1) avency rents the software according to the product solution listed in the order confirmation. The software is made available to the customer in the current version available at the start of the contract. avency only owes adjustments or changes to the software as well as the creation of interfaces to third-party programs insofar as these are necessary for the maintenance or repair of the rented item or to ensure the contractual use. Otherwise, adjustments and changes by avency are only owed upon separate agreement and, subject to other agreements, are to be remunerated according to the price list.
(2) The functional scope of the software as well as the technical requirements are derived from the respective service description.
(3) avency is entitled to make new versions of the software available. The customer's rights under this section shall then apply exclusively to the latest version of the software. If and to the extent that the provision of a new version or a change involves the omission or a significant change of software functionalities, avency will announce this to the customer in text form no later than six weeks before such a change becomes effective. If the customer does not object to the change in text or written form within a period of two weeks from receipt of the notice of change, the change shall become part of the contract. With every announcement of changes, avency will draw the customer's attention to the aforementioned deadline and the legal consequences of its expiry if the possibility to object is not utilized.
(1) The provision is for the exclusive use by the customer within the framework of the underlying contract. The rented item may only be used for the purposes referenced in this contract. In particular, the customer may not make any irreversible technical changes. avency grants the customer a simple, non-exclusive, non-transferable right, temporally limited to the agreed contract duration, to use the provided program in object code as well as the other components of the software for the assumed contractual purpose.
(2) Without avency's permission, the customer is not entitled to transfer the use of the rented item, including the software provided under this contract, to a third party, in particular to rent or lease it. The use by the customer’s employees is permitted within the framework of the contractual use and subject to an agreement on the scope of usage rights for end users and devices (No. 4 of these special conditions).
The usage rights granted by avency under Clause 3 of these special conditions are generally granted as Client Access Licenses (CAL) as follows:
a) Company-wide licenses (Company-CAL): For an arbitrary number of users and devices as end users and an arbitrary number of simultaneous user accesses (sessions) at the customer, but not for affiliated companies.
b) Licenses for limited simultaneous use (Concurrent-User-CALs): For the contractually intended number of simultaneous user accesses (sessions) regardless of the number and identity of the devices (PC, notebook, smartphone, printer, etc.) used for access to or use with the software and the number and identity of human users.
c) User-related licenses (User-CALs): For the contractually intended number of human users regardless of the number of devices (PC, notebook, smartphone, printer, etc.) used by them for access to or use with the software, but regarding access to the software, simultaneously with a maximum of one device.
d) Device-related licenses (Device-CALs): For the contractually intended number of devices (PC, notebook, smartphone, printer, etc.) for access to or use with the software, but simultaneously only for use by one human user.
The customer documents the correct assignment of licenses and presents this documentation to avency upon request. If there are doubts about the accuracy of the documentation, avency is entitled to request further information from the customer or to check compliance with the license at the customer’s premises itself.
(1) Reproductions of the software are only permitted insofar as this is necessary for the contractual use. The customer may make backup copies of the software to the necessary extent according to state-of-the-art technical standards.
(2) The customer may not make any modifications to the program unless these are necessary for its intended use. In this regard, the customer may not commission third parties who are competitors of avency unless they prove that the risk of disclosing important operating and business secrets of avency (in particular functions and design of the program) is excluded.
(3) Decompilation of the program is only permitted if the prerequisites and conditions specified in Section 69e Paragraph 1 of the German Copyright Act (UrhG) exist. Information obtained hereby may not be used or passed on contrary to the requirements of Section 69e Paragraph 2 UrhG.
(4) Markings of the software, in particular copyright notices, brands, serial numbers, or similar, may not be removed, altered, or made unrecognizable.
The customer is responsible for fulfilling the necessary technical minimum requirements for using the software according to the service description and the chosen product solution.
(1) The customer is obliged to report obvious defects in the software to avency in writing immediately, but no later than within two weeks after discovery of the defect. If the customer fails to give timely notice of defects, the warranty rights for these defects are forfeited.
(2) Upon timely and justified notice of defects, avency will, at its discretion, remedy the defect by subsequent improvement or by a workaround that is reasonable for the customer.
(3) Termination by the customer pursuant to § 543 Para. 2 Sentence 1 No. 1 BGB (German Civil Code) due to refusal of contractual use is only permissible if avency has been given sufficient (at least twice) opportunity to remedy the defect and this has failed. Failure of the remedy is only assumed when it is impossible, when it is refused or delayed by avency in an unreasonable manner, when there are justified doubts regarding the prospects of success, or when unreasonability for the customer exists for other reasons.
(4) Customer rights due to defects are excluded insofar as the customer makes or has made changes to the rented item without avency's consent, unless the customer proves that the changes have no effects on the analysis and remedy of the defects that are unreasonable for avency. Customer rights due to defects remain unaffected insofar as the customer is entitled to make changes, in particular within the framework of exercising the right of self-remedy pursuant to § 536a Para. 2 BGB, and these were carried out professionally and documented in a comprehensible manner.
(5) The liability of avency for defects in the software is limited to cases where the defect is based on intent or gross negligence of avency or its vicarious agents. For simple negligence, avency is only liable insofar as a fundamental contractual obligation was breached. Fundamental contractual obligations are those obligations whose fulfillment enables the proper execution of the contract in the first place and on whose observance the customer may regularly rely. In this case, the provider's liability is limited to the typically foreseeable damage. Liability for indirect damages, in particular lost profits, is excluded unless the provider acts intentionally or with gross negligence.
(6) Claims by the customer due to defects in the software become time-barred in one year from the statutory commencement of limitation, unless avency fraudulently concealed the defect.
(1) Upon termination of the contractual relationship, the customer must immediately delete the software, including manuals and documentation. Any copies of the software provided by avency must also be completely and finally deleted. Instead of return, avency may also demand the deletion of the provided program as well as the destruction of the provided manuals and documentation, along with corresponding proof.
(2) If a server was rented, the customer is obliged to return it to avency in proper condition upon request. Beforehand, the customer must delete all data concerning them from the server. The customer bears the costs for packaging and return shipment.
If avency rents third-party standard software to the customer in its own name, the conditions of the third-party provider (e.g., OpenAI Ireland Ltd) apply in addition to the conditions according to this Section F (Special Conditions for Software Rental).
(1) The special conditions for software rental (Cloud Solution) apply to the use of software as "Software as a Service" ("SaaS") or cloud offerings. For the use of VARIOS AI by avency as SaaS, the conditions according to Section H take priority; otherwise, the conditions of this section apply.
(2) These special conditions are not applicable to the provision of software that is made available directly by third parties (e.g., Microsoft products) as SaaS or cloud offerings.
(1) avency makes the software available to the customer in the respectively agreed version at the handover point where traffic leaves the data center in which servers with the software are operated. The software, the computing power required for use, and the necessary storage and data processing space are provided by avency. avency does not owe the establishment and maintenance of the data connection between the customer's IT systems and the described handover point.
(2) The functional scope of the software is derived from the respective service description.
(3) avency is entitled to make new versions of the software available. The customer's rights under this section shall then apply exclusively to the latest version of the software. If and to the extent that the provision of a new version or a change involves the omission or a significant change of software functionalities, avency will announce this to the customer in text form no later than six weeks before such a change becomes effective. If the customer does not object to the change in text or written form within a period of two weeks from receipt of the notice of change, the change shall become part of the contract. With every announcement of changes, avency will draw the customer's attention to the aforementioned deadline and the legal consequences of its expiry if the possibility to object is not utilized.
(1) Insofar as the software runs exclusively on the servers of avency or a service provider commissioned by same, the customer does not require any copyright usage rights to the software, and avency does not grant any such rights. However, for the term of the contract, avency grants the customer a non-exclusive, non-transferable right, temporally limited to the duration of the contract, to load the user interface of the software for display on the screen into the memory of the devices used for this purpose in accordance with the contract and to carry out the resulting reproductions, as well as to use the software exclusively for the contractual purposes.
(2) Without avency's permission, the customer is not entitled to make the software available to third parties. The use by the customer’s employees is permitted within the framework of the contractual use and subject to an agreement on the scope of usage rights for end users and devices (No. 4 of these special conditions).
The regulations regarding the scope of usage rights for end users and devices of the special conditions for software rental for customer server solution according to D. 4 apply accordingly.
Section F 5 applies accordingly.
(1) The customer must ensure Internet access up to avency's service handover point in order to be able to receive and use the services.
(2) It is the customer's responsibility to fulfill the respective technical requirements for using the client and the browser for accessing the provided software.
(1) Unless otherwise determined, avency provides the software to the customer with an availability of 95% on average over the then-current calendar year. Not taken into account are non-availabilities due to announced or urgently required maintenance work, the installation of updates or upgrades, unlawful behavior of third parties (e.g., denial-of-service attacks), and the use of the software by the customer in a manner other than that assumed at contract conclusion, in particular due to an unusually high user volume.
(2) If availability falls below this level, the customer is entitled to demand a credit note from avency in the amount of 10% of the respective monthly usage fee for each commenced percentage point by which the achieved availability falls below the agreed one, up to a maximum of 50% of the respective monthly usage fee.
(3) The customer is obliged to report functional failures, disturbances, and impairments to avency immediately and as precisely as possible.
avency warrants that the software essentially corresponds to the contractually agreed requirements at the time of provision and is free from significant defects that significantly impair its intended use. avency will remedy reported defects within a reasonable time or provide a reasonable workaround within a reasonable time.
Otherwise, Section F 7 applies accordingly.
(1) Upon the customer’s request, after termination of the contract, avency will make the application data stored by the customer available on a permanently readable, mobile, and audit-proof data carrier or via remote data transmission. The customer is obliged to reimburse avency for the necessary and proven costs incurred.
(2) avency may collaborate with a third party to handle the contractual relationship according to the customer’s instructions. This collaboration is limited to the transfer of the application data stored by the customer, the transfer of other data concerning the customer insofar as it does not constitute business secrets, as well as the instruction of the third party's employees regarding the customer’s circumstances. The customer is obliged to reimburse avency for the necessary and proven costs incurred.
If avency rents third-party standard software to the customer in its own name as SaaS or cloud solution, the conditions of the third-party provider apply in addition to the conditions according to this Section G (Special Conditions for Software Rental), insofar as these do not contradict the agreed conditions.
(1) The special conditions for the use of VARIOS AI apply to all contracts between avency and its customers regarding the software for the AI platform "Varios AI" by avency as described in the service description.
(2) In addition to these Special Conditions for the use of VARIOS AI, the VARIOS AI End User License Agreement (EULA) applies, as well as the special conditions for software rental (Customer Server Solution) according to Section F or the special conditions for software rental (Cloud Solution) according to Section G, in the following order in case of contradictions or deviations:
(1) avency provides the software for the AI platform "Varios AI" by avency according to avency's service description.
(2) Subject to express agreements to the contrary, the use of VARIOS AI is agreed as a user-related license model (User-CALs), the service content of which is derived from the service descriptions of the individual contracts.
(3) The use of AI models that are not operated by the customer themselves or for the customer takes place according to the agreement in the individual contract directly via API keys provided by the customer for access to the respective AI model.
(1) Individual contracts regarding the provision of VARIOS AI come into effect with avency's order confirmation.
(2) Subject to deviating agreements, the contract is concluded with a minimum term of one (1) year, after which the contract automatically extends for another year (renewal term) if it is not terminated by one party with a notice period of three (3) months to the end of the respective contract term (first possible time at the end of the minimum term).
(3) In the event of an additional acquisition of licenses during an existing contract during the minimum term or the renewal term, the term of the additionally acquired licenses is based on the terms of existing licenses of the agreed minimum term or renewal term for existing licenses to create uniform billing periods (block terms). Otherwise, the preceding paragraphs apply accordingly.
(1) The remuneration that the customer pays to avency for VARIOS AI in the respectively agreed billing period consists of:
a) The fee for the provision of VARIOS AI according to the individual contract agreement.
b) The fees for extensions agreed upon in individual cases.
c) The fees for consulting and support services.
(2) The fee owed for the provision of VARIOS AI is derived from the respective individual contract agreement.
(3) For the provision of customer-specific adaptations of VARIOS AI, avency receives the respectively agreed fee. This may consist of a flat rate for the provision per time period (possibly per time period per user), the costs for developing an extension, and the operating and maintenance costs of an extension.
(4) Additionally, avency advises and supports the customer upon request in individual cases and for separate remuneration regarding VARIOS AI (e.g., onboarding, setting up assistants, etc.). Unless otherwise agreed in the individual contract, avency's general price list applies.
(1) The customer receives access to VARIOS AI and may use the AI models as well as other functions in compliance with applicable laws, the VARIOS AI End User License Agreement (EULA), these conditions, and the conditions of the providers of the AI models. The terms of use of the AI model providers are accessible at any time via VARIOS AI with every use and are accepted by the customer with the usage input. avency expressly points this out in the input field of VARIOS AI.
(2) The customer is prohibited from using VARIOS AI as well as the AI models for illegal, harmful, or abusive activities. In particular, it is prohibited:
a) to infringe on the rights of others, misuse, or violate them through the use of VARIOS AI,
b) to modify, copy, rent, sell, or distribute VARIOS AI,
c) to reverse engineer, decompile, or find out the source code or underlying components of VARIOS AI, including algorithms or systems, or to assist anyone in doing so,
d) to claim that the output was created by humans when this is not the case.
In the case of software rental as a cloud solution, avency strives for high availability of VARIOS AI, but does not guarantee uninterrupted availability.
avency warrants an availability of the software of 95% on average over the then-current calendar year at the handover point. The handover point is the router output in the provider's data center (avency or avency's subcontractor).
The software is available when it is usable for the end user in the agreed period according to the agreed percentage availability quota, whereby the availability quota is calculated as follows:
(Agreed availability time - unplanned downtime) x 100% / agreed availability time.
Availability is deemed to be the end user's ability to use the essential functions of the software. Planned maintenance times as well as technical disturbances that are remedied within the remedy time stated by avency are considered times of software availability. Insignificant disturbances remain disregarded in the calculation of the availability quota.
Unplanned downtimes are times from the occurrence of the software's non-availability within the agreed availability time to the termination of the non-availability.
Not taken into account are non-availabilities due to announced or urgently required maintenance work, the installation of updates or upgrades, as well as unlawful behavior of third parties (e.g., denial-of-service attacks).
avency warrants that the software essentially corresponds to the contractually agreed requirements at the time of provision and is free from significant defects that significantly impair its intended use. avency will remedy reported defects within a reasonable time or provide a reasonable workaround within a reasonable time.
Otherwise, Section F 7 applies accordingly.
(1) The customer undertakes to use the provided AI models exclusively within the framework of applicable laws and these GTC.
(2) The customer is responsible for the confidentiality of all access data and undertakes not to pass these on to third parties.
(3) The customer undertakes to grant the use of VARIOS AI exclusively to authorized users. Authorized users are specifically named users whose authorization to use can be restricted by the customer. Upon request, avency supports the customer with authorization management. The support is to be remunerated by the customer according to the individual contract, or in the absence of an individual contract agreement, according to time and effort based on avency's general price list.
(1) The tasks for which the customer uses AI models via VARIOS AI may not always be fulfilled correctly. In particular, content generated by AI models (e.g., texts, images, or audio files) does not always reflect reality. Information contained therein may be factually incorrect. For this reason, AI models cannot replace professional expert advice. In no case is avency responsible for the accuracy and appropriateness of task fulfillment.
(2) The customer is aware of this fact. Accordingly, they will always check the task fulfillment by AI models via a human for accuracy and appropriateness in the respective individual case. In particular, they will do this with generated content before using or passing it on.