(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 applicable performance description and avency’s current General Price List also constitute components of the contract. In the event of contradictions between the order confirmation and the GTC, the provisions of the order confirmation shall prevail.
(1) avency’s offers are subject to change and non-binding, unless they have been designated or confirmed by avency as binding, at least in text form.
(2) Only the order placed by the customer constitutes a binding offer. Individual contracts are therefore generally only concluded upon issue of the order confirmation by avency.
The selection of qualified employees to provide the services in accordance with the contract is reserved for avency. If specific employees are named in the offer, avency may in principle replace people – even in agreed key positions – without the customer’s consent. avency is also entitled to use qualified subcontractors without the customer’s consent in appropriate cases.
(1) Unless otherwise agreed in the individual contract or unless otherwise provided for in the special provisions of 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) Unless otherwise agreed, all prices are in euros plus statutory value added tax, insofar as this is applicable.
(3) In the case of billing by the hour, avency is entitled to invoice in increments of 15 minutes or part thereof. Person-days shall be defined as consisting of 8 hours. avency is entitled to charge additional hours in excess of this in accordance with sentence 1. The calculation for on-site services begins with arrival at the place of assignment, in the case of services via remote data transmission with the establishment of the internet connection.
(4) Unless expressly agreed otherwise, the agreed remuneration is exclusive of any travel time, travel expenses, transport costs, material costs or other expenses incurred by avency, which are to be reimbursed separately as incurred.
(5) The respective remuneration shall be due immediately upon receipt of the invoice. The invoice is payable within 10 days of invoicing. Agreed monthly remuneration from continuing obligations must be paid monthly in advance by the 5th working day of each month at the latest. Any deduction from the invoice requires special written agreement.
(6) avency may change the agreed remuneration for consulting, support and other services with notice of two months and effective from the beginning of an extension period by means of an adjustment declaration, in written or text form, to the customer at its discretion, taking into account the conditions described below:
a) avency may change the remuneration at the most to the extent to which the index referred to in letter b below has changed (price change framework). If the remuneration is being adjusted for the first time, the change in the index between the index level published at the time of conclusion of the contract and the index level last published at the time of the adjustment declaration shall be decisive for the price change framework. For further remuneration adjustments, the index development between the index level last published at the time of the previous adjustment declaration and the index level last published at the time of the new adjustment declaration shall be decisive.
b) The index of the average gross monthly earnings of full-time employees in Germany for the economic sector of information technology services (currently published in quarterly figures by the Federal Statistical Office in subject-matter series 16, series 2.2, group J62) is to be used as a basis for determining the price change framework. If this index is no longer published, the index published by the Federal Statistical Office that most closely reflects the development of average gross monthly earnings in the above-mentioned economic sector will be decisive for the determination of the price change framework.
c) If the customer does not terminate the contract at least one month before the expiry of the previous contract term (special termination right), the amended remuneration shall be deemed to have been agreed upon in the event of automatic renewal of the contract for the extension period. avency shall point this out in the adjustment declaration.
d) In the event of a reduction in the revision price framework, the customer may demand a corresponding reduction in remuneration in accordance with the above paragraphs.
(7) The foregoing shall apply accordingly to the adjustment of a software rental.
(1) In individual cases, avency may offer to the customer the purchase of a contingent of hours (project budget) for a one-time payment or a regular contingent of hours (support budget) for a certain period of time for a recurring fee.
(2) If avency then provides services for the customer for which the latter owes avency remuneration based on time, the respective project or support budget shall be reduced by the time provided by avency. Once the customer’s project or support budget is used up, the customer owes avency remuneration for work performed in excess of this amount in accordance with the agreed price list or, if no individual price list has been agreed, in accordance with the General Price List. avency will inform the customer in good time of the consumption of the contingent.
(3) If the customer purchases a project budget, the contingent of hours contained therein shall expire after the end of the agreed time, unless otherwise expressly agreed, or, in the absence of an agreed time, at the end of avency’s financial year following conclusion of the agreement (1 January – 31 December). The customer is obliged to notify avency in good time before the expiry of the remaining contingent of hours whether, when and for which activity it will use these hours. If the customer fails to notify avency in this regard, it may use a maximum of 1/12 of the total contingent of hours in each remaining month until expiry.
Unless otherwise agreed in a framework agreement, in the respective individual contract or in accordance with the special terms and conditions of these GTC, contracts for continuing obligations or recurring performance have a minimum term of 24 (in words: “twenty-four”) months, starting from the date of the signing of the respective contract, in the absence of a signature upon receipt of the declaration of acceptance. The respective contract can be terminated by either party in writing with a notice period of three months to the end of the minimum contract period. Otherwise, the contract is automatically extended for a further twelve months and can be terminated in writing by either party in compliance with the aforementioned notice period of three months to the end of the respective extension period. The right to extraordinary termination for good cause remains unaffected.
(1) The customer may only offset against avency’s claims if the underlying counterclaims are undisputed, have been legally established or are ready for a decision.
(2) The customer is only entitled to assert a right of retention if the underlying counterclaims are based on the same contractual relationship and are undisputed, legally established or ready for a decision.
(1) If avency is obligated under these General Terms and Conditions or a separate individual contract to grant or transfer usage rights to the customer, the respective usage right is subject to the condition precedent of the fulfilment of all claims arising from the contractual relationship between the customer and avency.
(2) Until the condition of paragraph 1 has been met, avency shall grant the customer a usage right only to the extent that it is absolutely necessary to fulfil the purpose of the contract (e.g. acceptance test).
(3) avency shall waive the condition of paragraph 1 to the extent that 2/3 of the value of the usage right subject to this condition exceeds the sum of the claims against the customer to which avency is entitled.
Delivery and performance periods and dates 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, in particular in the event of the customer’s breach of obligations to cooperate, the dates affected by the delay shall be postponed appropriately; the statutory claims of the parties remain unaffected by this.
(1) The customer shall support avency in the provision of the services to a reasonable extent.
(2) The customer shall provide the following services in particular:
a) The customer shall appoint a responsible employee and a deputy who shall serve as contact persons for all those in connection with the performance of the respective individual contract. The contact person shall be familiar with the framework conditions relevant to the performance of the contract on the part of the customer (e.g. information technology used, software) and must also be authorised to make declarations that are necessary as an interim decision in the context of the continuation of the contract. Only the contact person and their deputy are entitled to submit fault reports. The customer is entitled to change the responsible employee and deputy. In this case, the customer shall inform avency immediately.
b) The customer shall describe and document faults and/or defects that it wishes avency to remedy in such detail (e.g. by means of screenshots) that these can be identified and reproduced. Insofar as it is possible and reasonable for the customer, it is also obliged to present the causes of malfunctions and defects and to prove them in the event of a dispute.
c) The customer shall provide avency with suitable remote access (e.g. via SSH, VPN, Team Viewer) and shall open these at 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 carry out regular data backups, in particular immediately before avency performs IT services or work services, in order to enable recovery in the event of data loss, and shall hand them over for the purpose of recovery at avency’s request.
f) The customer shall provide avency with the information, documentation and documents on its part that are required for the provision of services. The customer shall notify avency immediately in writing or in text form of any changes on its part that could impact the services to be provided by avency (e.g. changes to the operating conditions).
g) The customer shall allow the avency employees providing services access to the place of assignment and shall encourage its employees to cooperate with avency and any vicarious agents to the extent necessary for the provision of the service.
h) The customer shall provide avency with on-site workspaces and an option for the protected storage of materials in the customer’s vicinity free of charge if necessary.
i) The customer shall keep passwords and access data secret from unauthorised third parties and shall store these in such a way as to prevent access to such data by unauthorised third parties in order to prevent misuse by third parties.
(3) Obligations to cooperate are primary contractual obligations for the customer.
(4) If the customer fails to comply with its obligations to cooperate, fails to comply in time or fails to comply completely, despite avency’s request, avency may provide this service itself on behalf of the customer. avency is entitled to invoice the customer separately for the expenses incurred as a result in accordance with the General Price List. Other claims of avency remain unaffected.
(5) If the customer fails to cooperate despite a reminder and a reasonable deadline, avency is entitled to terminate the contract for good cause and has a claim to the damage caused by the failure to cooperate, regardless of the assertion of this right of termination.
(1) If the customer wishes to change the requirements of the agreed service, avency shall agree to this insofar as it is reasonable for avency, in particular with regard to the effort involved and any scheduling. The request for change is unreasonable in particular if, from avency’s point of view, the success of the service could be jeopardised by the requested changes because a disproportionately increased effort is incurred as a result or the scheduling and service planning is jeopardised. avency is entitled to examine the customer’s request for change and will inform the customer within a reasonable period of time, in particular taking into account the nature and scope of the request for change, whether it is reasonable for avency. If the request for change is unreasonable from avency’s point of view, 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 terms of the contract, avency may demand an appropriate adjustment of the terms of the contract, in particular an increase in remuneration or a postponement of the dates.
(1) Unless otherwise provided for in the following provisions, avency shall be liable in accordance with the statutory provisions.
(2) avency is liable without limitation for damages caused intentionally or by one of its vicarious agents or legal representatives, as well as for damages resulting from injury to life, limb or health. Likewise, avency is liable without limitation for damages due to the absence or omission of a guaranteed property or in the event of non-compliance with a warranty, unless otherwise specified.
(3) In all other cases, avency shall only be liable to the extent that it is in breach of a material obligation, the fulfilment of which is essential for the proper performance of the contract in the first place and on the compliance of which the other contracting party was entitled to rely (“cardinal obligation”). In this respect, liability is limited to the typical, foreseeable damage.
(4) In the event of data loss caused by simple negligence, avency shall only be liable for the damage that would have occurred if the customer had backed up the data properly and regularly and appropriately in accordance with the significance of the data.
(5) The aforementioned exclusions/limitations of liability do not apply to the extent that mandatory law (e.g. liability under the Product Liability Act or the GDPR) precludes it.
(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 inform avency thereof immediately in writing and leave the defence against these claims to avency as far as possible. In doing so, the customer will provide avency with all reasonable support. In particular, the customer shall provide avency with all necessary information about the use and possible processing of the software in writing and shall provide avency with existing documents. In this respect, the customer is prohibited without the prior written consent of avency from declaring an acknowledgment to the third party, concluding a settlement with the third party or otherwise making legal declarations to the third party that are likely to impair the defence against the infringement of intellectual property rights.
(2 ) Insofar as third-party property rights are infringed, avency may, at its discretion, carry out subsequent performance, whereby avency
• obtains a sufficient right of use for the purposes of the existing agreement from the person entitled to dispose of the infringed IP right in favour of the customer, or
• changes the infringing software with no or only acceptable effects on the functionality for the customer, or
• replaces the infringing software with software whose use in accordance with the contract does not infringe any intellectual property rights, with no or only acceptable effects on the functionality for the customer, or
• provides a new version whose use in accordance with the contract does not infringe any third-party property rights.
(1) Response and troubleshooting times require express agreement.
(2) The response time begins with the receipt of the fault report by avency and does not run outside the support period. A response is fulfilled when avency begins the fault diagnosis as well as when contacting the customer by phone/in writing if this appears necessary to remedy the fault. Troubleshooting time begins at the end of the response time and is complied with if avency has rectified the reported fault within the agreed time. The troubleshooting time only runs within the support time. If the customer does not perform the necessary cooperation or delays it, the reaction and troubleshooting times shall be extended accordingly.
(3) In the absence of agreed times, support time is Monday to Friday from 9:00 a.m. to 5:00 p.m. on nationwide working days.
(1) The customer is obliged to treat all knowledge of confidential information and trade secrets (“trade secrets”) of the respective other contracting party obtained in the course of the initiation and execution of the contract as confidential for an unlimited period of time and to use this only for the purposes of the performance of the individual contract.
(2) The above obligations shall not apply to trade secrets,
(a) which were already public knowledge or known to the other party at the time of their transmission by the contracting party;
(b) which, after being communicated by the contracting party, became public knowledge through no fault of the other contracting party;
(c) which, after being transmitted by the contracting party to the other party, have been made available by a third party in a non-unlawful manner and without restriction in terms of secrecy or use;
d) which have been developed independently by one of the contracting parties, without using the trade secrets of the contracting party;
e) which must be disclosed by law, official order or court decision – provided that the disclosing party informs the contractual partner thereof without delay and assists it in defending itself against such orders or decisions, or
f) insofar as the contractual partner is permitted to use or pass on the trade secrets on the basis of mandatory statutory provisions or on the basis of these GTC.
(3) avency processes the customer’s personal data only within the framework of the applicable data protection laws, in particular the GDPR.
(4) If necessary, the contracting parties shall conclude a data processing agreement in accordance with Art. 28 GDPR.
(1) The following provisions apply to documents and work results provided by avency or third parties commissioned by avency. In this context, work results are all consulting services, work services, in particular development services, information, technologies or comparable content that avency makes available in fulfilment of the contract:
a) All documents and work results are intended for use exclusively by the customer within the scope agreed in the contract or required by the contract; otherwise the customary use.
b) Unless otherwise agreed in the individual case, the customer is not entitled to disclose documents and work results, nor excerpts from or summaries of the above, nor to refer to avency in connection with the service. This does not apply:
i. if the customer is required by law to disclose – in such a case, it will promptly notify avency thereof;
ii. vis-à-vis affiliated companies within the meaning of Section 15 of the German Stock Corporation Act (AktG), advisors of the customer or affiliated companies that are legally obliged to maintain confidentiality (e.g. lawyers or tax advisors) as well as other advisors of the company, provided that it is ensured that the work results and documents disclosed fall under the protection of the Act on the Protection of Trade Secrets;
iii. in all other respects, 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 individual cases, it is not permitted to make changes to them.
(2) avency retains the rights to its existing intellectual property. Unless otherwise agreed in individual cases, all rights to intellectual property developed in the course of providing the service, including drafts, with the exception of any intellectual property of the customer contained therein, belong exclusively to avency. The customer only receives a limited, non-exclusive and non-time-limited right of use in accordance with the above provisions.
(1) The assignment and pledging of claims under this contract by the customer are excluded.
(2) Goods remain the property of avency until full payment has been 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 is the registered office of avency in Ostbevern. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, avency is also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a priority individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive competences, remain unaffected.
(2) The law of the Federal Republic of Germany shall apply to all legal relationships between avency and the customer to the exclusion of the laws on the international sale of movable goods, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) The language of the contract shall be German.
(4) Unless these GTC provide otherwise, contracts may only be amended, cancelled or supplemented in writing. This also applies to the amendment of the written form requirement.
(5) Should individual provisions be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. 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 event 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 servicing and maintenance work agreed in the individual case in accordance with Section E.
(1) IT services include, in particular, maintenance, servicing and support services. In the case of IT services, avency only owes support in the production and guarantee of use, e.g. in the installation, uninstallation and configuration of software, set-up and removal, 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 accesses software and hardware manufactured by third parties. This software and hardware may contain errors or be insufficiently 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 largely dependent on third parties in this regard, especially on those with whom there is no service relationship – e.g. in the case of the use of open source software – avency cannot guarantee that the software or software can be prepared in the manner desired by the customer when providing IT services. In this case, avency owes only the serious effort to do so.
(3) Insofar as avency provides support in maintenance and servicing, these services are not subject to acceptance and are only owed by avency to the extent that they have been expressly agreed in the individual case. The conditions agreed in individual contracts and any performance descriptions apply to these.
(4) In particular, development services shall not be the subject of the maintenance of software; avency will therefore only support the installation of the updates provided by the software creator. Unless otherwise agreed in the individual contract, this only includes security and quality updates, but not function updates, upgrades, version or release changes.
(5) The customer is obliged to inform avency at least 2 weeks in advance of any changes to the system environment or supplies initiated by the customer, insofar as these affect the contractual obligations of avency’s servicing and maintenance work.
(6) The customer is obliged to inform avency in good time of any changes to the system components that have not been made or initiated by avency, insofar as these affect the provision of avency’s contractual services. This obligation applies regardless of whether the customer is entitled to such a change or not.
(7) If avency determines adverse effects of these changes, avency will inform the customer thereof. In this case, avency is entitled to demand an adjustment of the contract in accordance with the changes. If an agreement on the adaptation 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 shall assume support for the software provided to the customer, in expressly agreed cases also for any hardware. As part of the support services, avency provides the customer with access to a ticket system for answering questions about use and operation.
(2) Support is available to the customer on German nationwide working days from Monday to Friday at the times specified in the support contract, in the absence of agreed times from Monday to Friday from 9am to 5pm (CET/CEST). Fault reports and support requests for the software are received by email or – if agreed between the parties – directly via the ticket system provided by avency.
(3) avency can only provide assistance for the software provided and maintained by avency if online access is available. This applies in particular to fault diagnosis in files and applications. Online access must be guaranteed by the customer.
(1) The following fault or defect classes apply:
• Class 1: A disruption that prevents operation occurs when the use of the hardware or software is impossible or severely restricted.
• Class 2: A disruption that hinders operations occurs when the use of the hardware or software is significantly restricted.
• Class 3: A slight disruption exists if the use of the hardware or software is possible without or with insignificant restrictions.
(2) Response and troubleshooting times must be expressly agreed. With regard to fault class 3, response times and troubleshooting times are at the discretion of avency. In all other respects, Section A 14 (2) (Response and troubleshooting times) shall apply mutatis mutandis.
The special terms and conditions for work services apply to all services that avency provides for the customer and for which avency promises to achieve tangible success if this has been agreed in written or text form. The work services may include, in particular, the customer-specific creation, modification or extension of software (development consulting), the installation and set-up of software as well as comparable IT services, if this has been expressly agreed and is not part of the IT services under Section B 2 (1) and (2) of these GTC.
(1) The scope of services results from the respective individual contract, in the case of agile software development from the respective epics and user stories (Scrum) or comparable artifacts. The documentation for the software is provided exclusively in electronic form.
(2) avency shall provide individual software to the customer in object code and in principle without system-technical documentation. The obligation to make the software available in the source code requires an express written agreement.
(1) Insofar as no other intended use has been agreed in the individual contract, avency shall transfer to the customer the non-exclusive, non-sublicensable, non-transferable right, limited to the agreed period of use, to use the individual software within the scope of the purposes of the respective individual contract, insofar as individual software has been created. Further rights such as modification, translation, editing, etc. require an express agreement in written or text form.
(2) The usage right refers to the individual software in the object code. In the absence of an express agreement to the contrary, avency is not obliged to provide the customer with the software in the source code.
(3) The granted right of use does not include the right to edit, change, translate or otherwise modify the software. The customer may not decompile, disassemble or reverse engineer the software, unless this is permissible under Section 69e UrhG without the consent of the rights holder.
(4) The customer is not entitled to transfer the use to a third party, in particular to rent or lend it, without the express prior written permission of avency.
(5) avency is only obliged to provide tools required for the creation of the individual software and to transfer the rights thereto on the basis of a separate written agreement.
(6) The rights to inventions made on the occasion of the performance of the contract shall belong exclusively to avency – subject to separate written agreements.
(1) avency will send the customer a handover protocol for the purpose of handover with the request to carry out a functional test and to declare the (partial) acceptance within the agreed period. This can be done, for example, through assignment of a corresponding task in a task management system to the customer through avency.
(2) If no deadline has been agreed for the declaration of (partial) acceptance, the acceptance must be declared within a period of 10 days from receipt of the request by avency. If acceptance is not declared within the aforementioned period, the service is deemed to have been accepted if the usability is not significantly restricted at that time (deemed acceptance). For the purpose of assessing the degree of a usability restriction, the defect classes in accordance with Section B 4 (Fault or defect classes) of these General Terms and Conditions shall apply.
(3) If defects of defect classes 1 and/or 2 (Section B 4 – Fault or defect classes) are detected during the acceptance test, the customer is entitled to refuse acceptance, unless these are caused by circumstances that originate from the sphere of responsibility of the customer, such as in particular incorrect use or a faulty operating environment used by the customer or by third parties on behalf of the customer. If only defects of defect class 3 are found, the customer is obliged to accept, but can make this subject to the remedy of defects. The defects detected during acceptance, regardless of which defect class they are assigned to, must be documented by the customer in a comprehensible manner. avency will eliminate these within a reasonable period of time.
Section A 4 (Remuneration) of these General Terms and Conditions shall apply mutatis mutandis to the remuneration of work services. In the absence of any other agreement, in particular if no contingent of hours been agreed with the customer in accordance with Section A 5, , the customer is obliged to pay 100% of the contractually agreed remuneration when placing the order.
(1) avency shall provide the services free of defects of quality and title. Any defects must be reported to avency by the customer, stating the information known to it and expedient for detection of the defect. The warranty in the event of defects in software requires that a defect is reproducible or can be represented by machine-generated output.
(2) avency does not assume any liability for errors, malfunctions or damage that can be attributed to improper operation, use of unsuitable equipment and abnormal operating conditions. Claims for defects are also excluded if the customer modifies the program (source code or object code) or intervenes in it in any other way (e.g. by changing the configuration), unless the intervention is recognisably not the cause of the error.
(3) avency shall be entitled, at its discretion, to remedy the error by means of written or machine-readable corrective measures, and as far as the customer can reasonably be expected to do so, also by means of workarounds. avency is also entitled to undertake the correction by installing an improved version of a program (update). avency is also entitled to carry out error analyses and corrections by means of remote maintenance, provided that the necessary facilities are mutually available and the customer establishes remote maintenance access in compliance with the principles of data protection and information security.
(4) If avency is not able to remedy the defect despite repeated attempts, for which avency must be given reasonable time and opportunity, the customer is entitled to cancel the contract or to reduce the remuneration with regard to the defective delivery and service. Before asserting these rights, the customer must notify avency of this by setting a reasonable period of time.
(5) If avency has acted on the basis of a fault report from the customer without the customer being able to prove the existence of a fault, the customer must bear the costs of the fault analysis.
(6) If partial services are accepted in accordance with the contractual agreement, the limitation period for claims for defects shall commence on the day of partial acceptance. The claim for subsequent performance, withdrawal from the contract and price reduction, damages and reimbursement of futile expenses shall become statute-barred one year after acceptance. The right to self-performance (Section 637 BGB) is excluded.
Without prejudice to the right under Section 648 of the German Civil Code (BGB), avency shall be entitled, in the event of termination by the customer, to demand the agreed remuneration for the service rendered in full; otherwise for services not yet rendered, less a lump sum of 25% for saved expenses and/or acquisition due to other use of labour. The customer has the option of proving that the sum of saved expenses and/or the acquisition due to the other use of labour or its malicious omission exceeds the lump sum for expenses. Managed cloud services may be the subject of a separate contract.
(1) The special conditions for standard software provision on a permanent basis apply to the non-time-restricted provision of software by avency.
(2) These special terms and conditions do not apply to the provision of software that is made available by avency or directly by third parties by way of software rental (Section F and Section G).
(1) Where the provision of standard software has been agreed, avency shall license and make such standard software available to the Customer in accordance with the terms of the respective individual contract. Insofar as no other intended use has been agreed in the respective individual contract, the non-exclusive, permanent, irrevocable and non-terminable right to use the standard software to the agreed extent shall be transferred to the customer at the time of delivery, i.e. in particular to store and load it permanently or temporarily, to display it and to let it expire.
(2) If avency provides the customer with standard software of third parties, the terms of use of the third party shall also apply.
(3) The granted right of use does not include the right to edit, change, translate or otherwise modify the software. The customer may not decompile, disassemble or reverse engineer the software, unless this is permissible under Section 69e UrhG without the consent of the rights holder.
(4) avency is not obligated to provide the customer with the software in the source code without an express agreement to the contrary.
(1) For the granting of the non-exclusive and non-transferable right of use to the provided software, the customer shall generally pay a one-time fee (licence fee) and, if applicable, an ongoing, usually monthly, fee for the delivery of updates (maintenance fee).
(2) The licence fee is due for payment in advance upon ordering. This also applies if the software or its set-up or adaptation requires acceptance.
(3) The creation of software as well as other services (installation, set-up, adaptation, etc.) shall be remunerated by the customer at the rates of the applicable price list, unless otherwise agreed in written or text form.
(1) If the customer makes use of its right to transfer the right of use, it must impose its contractual obligations with regard to the content and scope of the rights of use on the third party and provide proof of this to avency. With the transfer to the third party, the customer is no longer entitled to use.
(2) The customer is obliged to destroy or permanently delete any reproductions that may have been made. However, the customer may retain and use a copy solely for review and archival purposes.
(1) avency shall release the software free of defects of quality and title. In the case of standard software from third parties, 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, stating the information known to it and relevant for detection of the defect. The warranty in the event of defects in software requires that a defect is reproducible or can be represented by machine-generated output.
(3) In the case of standard software, this warranty period begins with the delivery, otherwise with the acceptance of the software, and ends after 12 months.
(4) avency does not assume any liability for errors, malfunctions or damage that can be attributed to improper operation, use of unsuitable equipment and abnormal operating conditions.
(5) If, despite repeated attempts, for which avency must be granted reasonable time and opportunity, avency is not in a position to remedy the defect, the customer is entitled to cancel the contract or to reduce the remuneration with regard to the defective delivery and service. Before asserting these rights, the customer must notify avency of this by setting a reasonable period of time.
(6) If avency has acted on the basis of a fault report from the customer without the customer being able to prove the existence of a fault, the customer must bear the costs of the fault analysis.
The special terms and conditions for the maintenance and servicing of software shall apply insofar as the customer has agreed with avency on software maintenance and/or servicing for a specific software, e.g. within the framework of a standard software transfer on a permanent basis in accordance with Section D.
(1) Standard software maintenance and servicing: As part of standard software maintenance and servicing, avency delivers updates that maintain the software’s range of functions and fitness for purpose. Software maintenance and servicing includes:
• Accepting fault reports and eliminating software bugs in the software that is the subject of software maintenance and servicing by providing updates and workarounds.
• Regularly updating and adapting to dependencies (e.g. development libraries or programming interfaces) in the software that is the subject of software maintenance and servicing,
• The provision of these updates via a repository accessible to the customer, as a download on the avency website, via the software that is the subject of software maintenance and servicing or any special software provided by avency for this purpose.
(2) Extended maintenance and servicing: Adaptation to implement amended legislation and technical standards
For software that is the subject of software maintenance and servicing, avency will also provide updates for the adaptation of the software, at the customer’s separate request and for a separate fee, which are necessary for the implementation of 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 servicing:
• Updates to adapt the software to other runtime environments (e.g. a switch from Linux to Windows) as well as updates to adapt to newer operating system versions.
• Significant other technological adjustments or adjustments affecting the basic functions of the software that are necessary for reasons beyond avency’s control, e.g. the switch of operations from server-on-site software to software in the cloud or changes to the data (access) model.
• The inclusion of additional functionalities and program extensions, unless avency decides, at its reasonable discretion, to provide such adaptation as part of the software maintenance and servicing.
avency owes software maintenance and servicing only for the latest program version, but not for earlier versions.
(1) avency shall receive the remuneration agreed in the individual contract for the standard software maintenance and servicing; in the absence of such stipulations, remuneration at cost in accordance with avency’s General Price List.
(2) Unless expressly agreed otherwise, updates within the scope of “extended software maintenance and servicing” as defined in Section E 2 (2) are not compensated for by an agreed lump-sum remuneration and are invoiced according to the General Price List.
Avency grants the customer the same rights to updates delivered as part of the software maintenance that avency granted to the customer for the original software.
(1) avency will compensate for defects in the software provided, including the documentation, in accordance with the statutory requirements, at avency’s discretion by means of free repair or replacement.
(2) In all other respects, Section D 5 (Warranty in the event of permanent provision of software) shall apply mutatis mutandis with regard to the customer’s rights concerning defects.
avency is entitled to make new versions of the software available. The customer’s rights under this Section shall then be available to the customer exclusively with regard to the latest version of the software. If and to the extent that the provision of a new version or a change is accompanied by a change in the functionalities of the software, the customer’s workflows supported by the software and/or restrictions in the usability of previously generated data, avency shall notify the customer thereof in text or written form at least six weeks before such a change takes effect. If the customer does not object to the change in text or writing form within a period of two weeks from receipt of the change notification, the change becomes part of the contract. avency will draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry if the option of objection is not exercised whenever changes are announced.
(1) The special terms and conditions for software rental apply to the rental and provision of software by avency on a server that is usually operated at the customer’s location or at the customer’s expense by the customer or a third party on behalf of the customer at another location, e.g. a data centre (customer server solution). For the use of avency’s VARIOS AI as a customer server solution, the terms and conditions set out in Section H take precedence; in all other respects, the terms and conditions of this section shall apply.
(2) These special terms and conditions do not apply to the rental and provision of software that is leased and made available directly by third parties (e.g. Microsoft 365).
(1) avency rents out the software in accordance with the product solution listed in the order confirmation. The software is made available to the customer in the current version available at the beginning of the contract. avency only owes adjustments or changes to the software as well as the creation of interfaces to third-party programs to the extent that these are necessary for the maintenance or repair of the leased object or to ensure its use in accordance with the contract. In all other respects, adjustments and changes by avency are only owed after a separate agreement and, unless otherwise agreed, are to be remunerated in accordance with the price list.
(2) The range of functions of the software as well as the technical requirements are taken from the respective performance description.
(3) avency is entitled to make new versions of the software available. The customer’s rights under this Section shall then be available to the customer exclusively with regard to the latest version of the software. If and to the extent that the provision of a new version or a change is accompanied by a discontinuation or a significant change in functionalities of the software, avency shall notify the customer thereof in text form no later than six weeks before such a change takes effect. If the customer does not object to the change in text or writing form within a period of two weeks from receipt of the change notification, the change becomes part of the contract. avency will draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry if the option of objection is not exercised whenever changes are announced.
(1) The transfer is made for exclusive use by the customer within the framework of the underlying contract. The leased object may only be used for the purposes referenced in this contract. In particular, the customer must not make any irreversible technical changes. avency grants the customer the simple, non-exclusive, non-transferable right, limited in time to the agreed term of the contract, to use the provided program in the object code as well as the other components of the software for the intended contractual purpose.
(2) Without the permission of avency, the customer is not entitled to transfer the use of the leased object, including the software provided under this contract, to a third party, in particular to rent or lend it. Use by the customer’s employees is permitted within the scope of the contractual use and subject to an agreement on the scope of the rights of use for end users and devices (No. 4 of these special conditions).
The rights of use granted by avency in accordance with Section 3 of these special terms and conditions are generally granted as a Client Access Licence (CAL) as follows:
a) Company-wide licences (Company CALs):
For any number of users and devices as end users and any number of concurrent user accesses (sessions) at the customer, but not at affiliated companies.
b) Licences for limited concurrent use (Concurrent User CALs):
For the contractually provided number of concurrent user accesses (sessions) regardless of the number and identity of the devices used for this to access or use the software (PC, notebook, smartphone, printer, etc.) and the number and identity of human users.
c) User-specific licences (User CALs):
For the contractually provided number of human users, regardless of the number of devices used by them to access or use the software (PC, notebook, smartphone, printer, etc.), however with access to the software on no more than one device at a time.
d) Device-specific licences (Device CALs):
For the contractually provided number of devices (PC, notebook, smartphone, printer, etc.) for access to or use with the software, however for use by one human user at a time.
The customer documents the correct assignment of licences and provides this documentation to avency upon request. If there are doubts about the correctness of the documentation, avency is entitled to request further information from the customer or to check compliance with the licence itself at the customer’s premises.
(1) Reproductions of the software are only permissible to the extent that this is necessary for use in accordance with the contract. The customer may make copies of the software in accordance with the rules of technology to the extent necessary.
(2) The customer may not make any modifications to the program, unless these are necessary for the intended use. The customer may not commission third parties who are competitors of avency for this purpose, unless it can prove that the risk of disclosure of important trade and business secrets of avency (in particular of the functions and design of the program) is ruled out.
(3) The decompilation of the program is only permissible if the prerequisites and conditions specified in Section 69e paragraph 1 UrhG are met. The information obtained in this way may not be used or passed on contrary to the provisions of Section 69e paragraph 2 UrhG.
(4) Markings of the software, in particular copyright notices, trademarks, serial numbers or the like, may not be removed, changed or made unrecognisable.
The customer is responsible for meeting the minimum technical requirements necessary for the use of the software in accordance with the performance specification and the selected product solution.
(1) The customer is obliged to report obvious defects in the software to avency in writing without undue delay, but no later than within two weeks after the defect has been discovered. If the customer fails to report defects in good time, the warranty rights for these defects lapse.
(2) In the event of timely and justified notification of defects, avency shall, at its discretion, remedy the defect by rectification or a workaround that is reasonable for the customer.
(3) Termination by the customer pursuant to Section 543 paragraph 2 sentence 1 no. 1 BGB due to non-granting of contractual use is only permissible if avency has been given sufficient (at least twice) opportunity to remedy the defect and this has failed. A failure to remedy the defect can only be assumed if remedy is impossible, if it is refused by avency or unreasonably delayed, if there are reasonable doubts regarding the prospects of success or if for other reasons the customer experiences undue burden.
(4) The rights of the customer due to defects are excluded if the customer makes changes to the leased object or has changes made without avency’s consent, unless the customer proves that the changes do not have an unreasonable effect on the analysis and elimination of the defects. The rights of the customer due to defects remain unaffected, provided that the customer is entitled to make changes, in particular in the context of exercising the right of self-remedy in accordance with Section 536a paragraph 2 BGB, and these have been professionally executed and documented in a comprehensible manner.
(5) avency’s liability for defects in the software is limited to cases in which the defect is based on intent or gross negligence on the part of avency or its vicarious agents. avency is liable for slight negligence only if a material contractual obligation has been violated. Material contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract in the first place and on the fulfilment of which the customer may regularly rely. In this case, the liability of the provider is limited to the typically foreseeable damage. Liability for indirect damages, in particular loss of profit, is excluded, unless the provider acts intentionally or with gross negligence.
(6) Claims by the customer due to defects in the software shall become statute-barred one year from the start of the statutory limitation period, unless avency has fraudulently concealed the defect.
(1) Upon termination of the contractual relationship, the customer shall immediately delete the software, including manuals and documentation. [TK1.1]Any copies of the software provided by avency must also be deleted completely and permanently. Instead of returning them, avency may also demand the deletion of the program provided and the destruction of the provided manuals and documentation, together with corresponding evidence.
(2) If a server has been rented, the customer is obliged to return it to avency in proper condition without being asked. Before doing so, it must delete all data concerning it from the server. The customer bears the costs for packaging and return shipping.
If avency rents out standard third-party software to the customer in its own name, the terms and conditions of the third-party provider (e.g. OpenAI Ireland Ltd) shall apply in addition to the terms and conditions set out in this Section F (Special terms and conditions for software rental).
(1) The special terms and conditions for software rental (cloud solution) apply to the use of software as “Software as a Service” (“SaaS”) or cloud offering. For the use of avency’s VARIOS AI as SaaS, the terms and conditions set out in Section H take precedence, otherwise the conditions of this section.
(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 shall make the software available for use to the customer in the respectively agreed version at the transfer point at which data traffic leaves the data centre in which servers operating the software are located. The software, the computing power required for use and the required 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 transfer point.
(2) The range of functions of the software results from the respective performance description.
(3) avency is entitled to make new versions of the software available. The customer’s rights under this Section shall then be available to the customer exclusively with regard to the latest version of the software. If and to the extent that the provision of a new version or a change is accompanied by a discontinuation or a significant change in functionalities of the software, avency shall notify the customer thereof in text form no later than six weeks before such a change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change becomes part of the contract. avency will draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry if the option of objection is not exercised whenever changes are announced.
(1) Insofar as the software runs exclusively on the servers of avency or a service provider commissioned by it, the customer does not need any copyright rights of use to the software and avency does not grant any such rights. However, for the term of the contract, avency grants the customer the non-exclusive, non-transferable right, limited in time to the duration of the contract, to load the user interface of the software into the working memory of the end devices used for this purpose in accordance with the contract for display on the screen and to make the resulting reproductions and to use the software exclusively for the purposes in accordance with the contract.
(2) The customer is not entitled to make the software available to third parties without the permission of avency. Use by the customer’s employees is permitted within the scope of the contractual use and subject to an agreement on the scope of rights of use for end users and devices (No. 4 of these special conditions).
The provisions on the scope of the rights of use for end users and devices under the special conditions for software rental for the customer server solution in accordance with D. 4 shall apply accordingly.
Section F 5 shall apply mutatis mutandis.
(1) The customer must ensure internet access to avency’s service transfer point so that it can receive and use the services.
(2) It is the customer’s responsibility to meet the respective technical requirements for the use of the client and the browser to access the software provided.
(1) Unless otherwise specified, avency shall make the software available to the customer with an availability of 95% on average for the current calendar year. This does not take into account unavailability due to announced or urgently required maintenance work, the installation of updates or upgrades, unlawful conduct by 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 the conclusion of the contract, in particular due to an unusually high number of users.
(2) If the availability is not reached, the customer is entitled to demand credit from avency in the amount of 10 % of the respective monthly usage fee for each percentage point or part thereof by which the achieved availability falls short of the agreed one, but no more than 50 % of the respective monthly usage fee.
(3) The customer is obliged to notify avency immediately and as precisely as possible of any functional failures, malfunctions or impairments.
avency warrants that the software substantially meets the contractually agreed requirements at the time of provision and is free from material defects that significantly impair its intended use. avency shall eliminate the reported defects within an appropriate time or provide a reasonable workaround within an appropriate time.
In all other respects, Section F 7 shall apply mutatis mutandis.
(1) At the request of the customer, avency shall, after termination of the contract, make available the application data stored by the customer on a permanently readable mobile and audit-proof data carrier or by means of remote data transmission. The customer is obliged to reimburse avency for the necessary and documented costs incurred.
(2) avency may cooperate with a third party in accordance with the customer’s instructions for the winding down of the contractual relationship. This cooperation is limited to the transmission of the application data stored by the customer, the transmission of other data concerning the customer, insofar as this does not constitute a trade secret, and the instruction of the employees of the third party in the circumstances of the customer. The customer is obliged to reimburse avency for the necessary and documented costs incurred.
If avency rents out standard third-party software to the customer in its own name as a SaaS or cloud solution, the terms and conditions of the third-party provider shall apply in addition to the conditions set out in this Section G (Special terms and conditions for software rental), insofar as they do not contradict the agreed terms.
(1) The special terms and conditions for the use of VARIOS AI apply to all contracts between avency and its customers regarding the software for the “Varios AI” AI platform from avency as described in the performance description.
(2) In addition to these special terms and conditions for the use of VARIOS AI, the VARIOS AI End User Licence Agreement (EULA) shall apply, as well as the special conditions for software rental (customer server solution) pursuant to Section F or the special conditions for software rental (cloud solution) pursuant to Section G; in the event of contradictions or discrepancies, in the following order:
• VARIOS AI End User Licence Agreement (EULA)
• Special terms and conditions for the use of VARIOS AI (Section H)
• Special terms and conditions for software rental (customer server solution) pursuant to Section F or special conditions for software rental (cloud solution) pursuant to section G, depending on the scope of application.
(1) avency provides the software for avency’s “Varios AI” AI platform in accordance with avency’s performance description.
(2) Unless expressly agreed otherwise, the use of VARIOS AI is agreed as a user-specific licence model (User CALs), the content of which results from the performance descriptions of the individual contracts.
(3) In accordance with the individual contractual agreement, the AI models that are not operated by or for the customer itself shall be used directly via API keys provided by the customer for access to the respective AI model.
(1) Individual contracts for the provision of VARIOS AI are concluded upon order confirmation by avency.
(2) Unless otherwise agreed, the contract shall be concluded with a minimum term of one (1) year, after the expiry of which the contract shall be extended by a further year (extension term), unless it is terminated by one party with a notice period of three (3) months to the end of the respective contract term (for the first time to the expiry of the minimum term).
(3) In the case of an additional acquisition of licences under an existing contract during the minimum term or the renewal term, the term of the additionally purchased licences shall be based on the terms of existing licences, the agreed minimum term or renewal term for existing licences in order to create uniform billing periods (block terms). In all other respects, the preceding paragraphs shall apply mutatis mutandis.
(1) The fee paid by the customer to avency for VARIOS AI in the agreed billing period shall consist of:
a) the fee for the provision of VARIOS AI in accordance with the individual contractual agreement,
b) the fees for extensions agreed in individual cases,
c) the fees for consulting and support services.
(2) The fee owed for the provision of VARIOS AI is taken from the respective individual contractual agreement.
(3) For the provision of customer-specific adaptations of VARIOS AI, avency shall receive the agreed fee in each case. This can consist of a lump sum for the provision per time period (if applicable, per time period per user), the costs for the development of an extension and the operation and maintenance costs of an extension.
(4) In addition, avency advises and supports the customer on request in individual cases and against separate remuneration in relation to VARIOS AI (e.g. onboarding, set-up of assistants, etc.). Unless otherwise agreed in an individual contract, avency’s general price list applies.
(1) The customer shall have access to VARIOS AI and may use the AI models and other functions in compliance with applicable laws, the VARIOS AI End User Licence Agreement (EULA), these terms and the terms and conditions of the providers of the AI models. The terms of use of the providers of the AI models can be accessed via VARIOS AI at any time with each use and are accepted by the customer with the usage input. avency expressly points this out in the VARIOS AI input field.
(2) The customer is prohibited from using VARIOS AI and the AI models for illegal, harmful or abusive activities. In particular, it is prohibited to:
a) violate, abuse or infringe upon the rights of others through the use of VARIOS AI,
b) modify, copy, rent, sell or distribute VARIOS AI,
c) reverse engineer, decompile or discover the source code or underlying components of VARIOS AI, including algorithms or systems, or assist anyone in doing so;
d) 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 guarantees an average availability of 95% of the software available at the transfer point for the current calendar year. The transfer point is the router output in the data centre of the provider (avency or avency’s subcontractors).
The software is deemed available when it is usable for the end user during the agreed period of time in accordance with the agreed percentage of availability, whereby the availability rate is calculated as follows:
(Agreed availability - unplanned downtime) x 100% agreed availability
Availability is defined as the ability of the end user to use the essential functions of the software. Planned maintenance times as well as technical malfunctions that are resolved within the fault resolution time specified by avency are considered times of availability of the software. Insignificant disruptions are not taken into account in the calculation of the availability rate.
Unplanned downtime is time from the occurrence of the unavailability of the software within the agreed availability time until the end of the unavailability.
This does not take into account unavailability due to announced or urgently required maintenance work, the installation of updates or upgrades or unlawful conduct by third parties (e.g., denial-of-service attacks).
avency warrants that the software substantially meets the contractually agreed requirements at the time of provision and is free from material defects that significantly impair its intended use. avency will eliminate the reported defects within an appropriate time or provide a reasonable workaround within an appropriate time.
In all other respects, Section F 7 shall apply mutatis mutandis.
(1) The customer undertakes to use the AI models provided exclusively within the framework of the applicable laws and these GTC.
(2) The customer is responsible for the confidentiality of all access data and undertakes not to pass this on to third parties.
(3) The customer undertakes to grant the use of VARIOS AI exclusively to authorised users. Authorised users are named users whose usage authorisation by the customer may be subject to restrictions. avency supports the customer in authorisation management on request. The support is to be remunerated by the customer according to the individual contract, in the absence of an individual contractual agreement at cost according to avency’s General Price List.
(1) The AI models used by the customer through VARIOS AI may not always correctly perform the tasks for which they are used by the customer. In particular, content generated by AI models (e.g. texts, images or audio files) does not always reflect reality. Information contained there may be factually incorrect. Therefore, AI models cannot replace professional expert advice. In no case shall avency be responsible for the correctness and appropriateness of the performance of the tasks.
(2) The customer is aware of this fact. Accordingly, it will always check the fulfilment of tasks by AI models by a human for correctness and appropriateness in the respective individual case. In particular, it will do this in the case of generated content before using or passing it on.