1. General remarks
1.1 The following General Terms and Conditions shall govern the relationship between the partner (hereinafter referred to as “Partner”) and Evoleen Technology GmbH (hereinafter referred to as ”Evoleen”; the Partner and Evoleen together the “Parties” and each a “Party”).
1.2 These General Terms and Conditions become legally binding with the Partner’s oral or written acceptance of an offer for the provision of services by Evoleen (the “Services”).
1.3 Terms and conditions of the Partner which differ from these Terms and Conditions shall not be binding unless Evoleen expressly accepted such terms or conditions in writing.
2. Nature and scope of Evoleen's services
2.1 The nature and scope of the Services are exclusively defined in Evoleen's written offer which has been accepted by the Partner. Changes and amendments to the scope of the Services shall be binding only in written form.
2.2 Upon payment of the final invoice, Evoleen shall transfer all rights which have been developed in the course of the provision of the Services to the Partner.
2.3 Evoleen is only entitled to change or amend Services agreed upon between the Parties if such changes or amendments improve Evoleen's performance without an increase in the price.
3. Performance by third parties
3.1 The Partner shall support Evoleen to the extent necessary in order for Evoleen to provide the Services.
3.2 In performing the Services, Evoleen shall be entitled to consult with third parties or to partly or entirely sub-contract the provision of any part of the Services to third parties, provided that the relevant third party is an affiliate of Evoleen (Evoleen and its affiliates, together the “Evoleen Group”) or the Partner has been informed of the engagement of the sub-contractor and has not objected thereto within one week upon receipt of a corresponding notice by Evoleen, provided that the Partner may only object to the engagement of a sub-contractor for valid reasons.
4. Business and trade secrets
Evoleen shall disclose the Partner's business and trade secrets only to such third parties that Evoleen consults in order to perform the Services or to sub-contractors which have been engaged pursuant to and in accordance with section 3 above.
5. Compliance with regulations
5.1 The Partner shall indicate in writing all legal or technical rules, regulations and standards to Evoleen relating to the Services before Evoleen prepares an offer.
5.2 Unless otherwise agreed upon by the Parties, the Services shall only comply with such rules, regulations and standards which are mentioned in Evoleen's offer.
6. Prices
6.1 All prices are indicated in Euros (excluding any value added taxes), unless otherwise agreed upon by the Parties. Expenses in connection with the performance of the Services shall be charged separately.
6.2 The Partner shall bear any kind of transport cost, taxes, charges, fees and duties which become due and payable in connection with the performance of the Services. In case Evoleen becomes liable for the payment of any such taxes, charges, fees or duties, the Partner shall promptly reimburse Evoleen.
7. Terms of payment
7.1 Unless otherwise agreed upon by the Parties in writing, all Services performed shall be invoiced on a monthly basis in the form of an intermediate or final statement of account.
7.2 All Services shall be billed according to their degree of performance or, respectively, according to the stage of the Services provided. This rule particularly applies to provisional prices agreed between the Parties, to fixed prices and to Services supplied based on a rough estimate of costs.
7.3 Unless otherwise agreed upon between the Parties, all sums invoiced are due and payable within 30 days upon receipt of the invoice.
7.4 Unless otherwise agreed upon between the Parties, all payments shall be made in Euros without any deduction for discounts, expenses, taxes, duties, charges etc.
7.5 In case the Partner defaults on the payment for whatever reason, Evoleen shall, without any further action, be entitled to suspend the performance of the Services without prejudice to its further legal rights until new terms of payment have been agreed upon and Evoleen has received sufficient securities for the further performance of the Services. If such agreement cannot be reached within a period of 30 calendar days or if Evoleen does not receive sufficient securities, Evoleen shall be entitled to withdraw from the agreement with the Partner. In any case, the right to claim damages remains reserved.
7.6 Should the Partner be in default as to the payment, it shall, without further notice pay default interest of 5 (five) per cent. per annum from the 30th day after receipt of the invoice.
8. Exclusion of set-off
The Parties undertake not to set off their mutual claims without the prior written consent of the other Party.
9. Examination and acceptance
9.1 The Partner shall examine all Services, in particular, any product delivered, any work supplied and any result, partial result and result of a test produced, as soon as possible and shall notify Evoleen in writing, giving full particulars of any possible breaches of Evoleen’s duty of care or possible defects without delay. If the Partner fails to duly and timely notify defects, Evoleen's performance shall be deemed to be accepted.
9.2 The Partner’s payment of the final invoice or the start of the production (whatever comes first) shall be deemed to constitute the acceptance of the work or service. In any event, the work or services performed by Evoleen shall be deemed to be accepted three (3) months after their delivery or performance.
9.3 If hidden defects are discovered at a later date, written and substantiated notice must be given upon discovery of the defect to Evoleen without delay. The Partner’s failure to do so shall be deemed as acceptance of Evoleen's performance.
10. Warranties, liabilities and indemnities
10.1 All claims of the Partner against Evoleen with respect to warranties or liabilities shall exclusively be governed by the following provisions.
10.2 Evoleen warrants and covenants that all Services furnished by it shall be provided in a workmanlike manner and in accordance with the best practices in the service industry. Evoleen further warrants that to the best of its knowledge, (i) it owns all rights, in particular all copyrights, trademarks, patents and all other IP Rights which it uses for the provision of its Services; and (ii) that the results of its Services do not infringe third party IP Rights. However, Evoleen shall only conduct third-party IP Rights researches if the Parties have explicitly agreed so in writing. Any further warranties shall be excluded.
10.3 In case of notified breaches of the duty of care or defects, Evoleen shall repair and remedy such defects of its deliverables within a reasonable period of time which shall not be less than twenty (20) working days. During the agreed guarantee period, Evoleen shall remedy such defects on its own account if and to the extent Evoleen is responsible for such defects. Evoleen may, at its own discretion and with the effect of being released from any further obligation, replace goods instead of remedying defects.
10.4 Should Evoleen not remedy breaches of the duty of care or defects notified to it in a timely manner, the Partner shall, to the exclusion of all further claims, be entitled to a reduction of the price owed in an amount equal to the decrease in value of the deliverables. Payments already effected may not be reclaimed.
10.5 Should the Partner suffer further damages, be it because of a breach of the duty of care or due to a defective work or for any other reason for which Evoleen is responsible based on negligence, it shall be entitled to claim damages, provided that such damages shall not exceed 50% of the fees paid by the Partner to Evoleen under the respective assignment. Evoleen shall have no further liability unless in case of wilful misconduct or gross negligence.
10.6 Both Parties shall be entitled to ask for their own account an examination of the Evoleen’s performance or of alleged defects by a neutral expert.
10.7 Should the Partner order novel designs, procedures or techniques which require more than the application of the generally accepted state of the art, then it shall not be entitled to claim damages from Evoleen and it will hold Evoleen harmless for any damages arising from the application of such designs, procedures or techniques.
10.8 The Partner is obliged to produce and to test the required functional models, prototypes, pre-series, test-series etc. Failure to do so relieves Evoleen from any liability. In particular, the Partner bears all risks associated with a premature serial production.
10.9 In no event, Evoleen shall be liable for consequences resulting from the infringement of Evoleen’s instructions or operating conditions (such as manuals, technical data-sheets, the definition of the operating or production environment, etc.) by the Partner or a third party or from the infringement of the assistance obligation set forth in section 3 above.
10.10 The Partner declares that it shall be liable for all instructions given by himself in connection with the performance of the Services by Evoleen, and that it shall hold Evoleen harmless, unless Evoleen is liable for wilful misconduct or gross negligence.
10.11 Defects shall be exclusively repaired by Evoleen. In case the Partner attempts to repair defects by itself or have them repaired by a third party, Evoleen shall immediately be released from all liability and guarantees. The same applies if goods produced in connection with the assignment are altered or repaired without the consent of Evoleen.
10.12 In addition, Evoleen shall immediately be released from all liability and guarantees if the Partner, after the emergence of a defect, fails to take all reasonable and appropriate measures to prevent or reduce damages or fails to give Evoleen the unrestricted opportunity to remedy the defect.
10.13 After one year, any and all claims in terms of damages or guarantee performances of the Partner are barred by the statute of limitations, such statute of limitation starting at the time of the partial or entire performance by Evoleen. Performance is made in full or in part with any dispatch, any transfer or delivery of a product, a work, goods, a result, a partial result or result of a test to the Partner.
10.14 For all performances of a third party or parts thereof which are separately specified in the agreement between the Partner and Evoleen, Evoleen shall exclusively be liable to the extent of the liability and guarantee set forth by such third party, which however shall in no event exceed the liability of Evoleen provided under this Sect. 10.
11. Force majeure
11.1 A Party shall not be in default and not liable for a failure to perform any of its obligations if it proves that the failure was due to an impediment beyond its or its contractors, vendors, suppliers or sub-contractors control, including but not limited to acts of God, total or partial destruction of the production plant or site, shortages, conditions of war, mobilization, insurrection or civil disturbance, revolution, acts of government in either their sovereign or contractual capacity, fire, epidemics, quarantine restrictions, unusual severe weather conditions, embargoes or trade restrictions or any other cases which can be considered as force majeure according to international practice.
11.2 In case of force majeure, the Party who fails to perform shall promptly notify the other Party of the relevant events indicating the potential effect on the work progress and delivery programme.
12. Explicit representations
12.1 Evoleen only makes the representations which are explicitly defined in the offer. Such representations are only valid until the expiration of the relevant warranty period.
12.2 Evoleen does not make any representation with respect to the question whether any newly developed software can be used continuously and in all combinations the Partner desires, or whether such software can be used by the Partner with any data, any electronic data processing system or any electronic data processing programs.
13. Evoleen's right of recourse
Evoleen shall have the right of recourse against the Partner if a claim is made against Evoleen because individuals were injured or property of third parties were damaged through actions or omissions of the Partner or his affiliates or representatives.
14. Enticing-away of personnel
Partner agrees neither to entice away nor to employ employees of Evoleen during the contractual relationship and within one year after termination of the assignment. This obligation may be enforced in realis.
15. Place of performance and venue Exclusive place of performance and exclusive venue for all proceedings between the Parties shall be Munich, Germany.
16. Final Provisions
16.1 Modifications, changes or amendments to these General Terms and Conditions (including this section) may only be made in writing.
16.2 The assignment made to Evoleen under these General Terms and Conditions shall not constitute a joint venture.
16.3 If, at any time, any one of the provisions of these General Terms and Conditions shall be or become invalid, the validity of the remaining provisions shall not be affected or impaired thereby. The Parties undertake to remedy possible gaps in these General Terms and Conditions and in any other agreement between them by agreeing to new provisions meeting the economic and legal purpose of the original agreement or the ineffective parts thereof as closely as possible.
16.4 No Party shall assign any right or interest under the contractual relationship between the Parties to a third party without the prior written consent of the other Party.
16.5 All legal relationships between the Partner and Evoleen shall be subject to the substantive laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April, 1980 (CISG) shall not apply.
Version 1/2024
